Debbie Atchinson v. Howmet Aerospace, Inc. ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS NOV 10 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
DEBBIE ATCHINSON, Personal No. 20-35250
Representative of the Estate of Clinton E.
Casey, D.C. No. 2:18-cv-01358-TSZ
Plaintiff-Appellant,
MEMORANDUM*
v.
HOWMET AEROSPACE, INC.,
Defendant-Appellee.
Appeal from the United States District Court
for the Western District of Washington
Thomas S. Zilly, District Judge, Presiding
Argued and Submitted November 8, 2021
Seattle, Washington
Before: GOULD, TALLMAN, and BUMATAY, Circuit Judges.
Plaintiff-Appellant Clinton Casey appeals from the district court’s decision to
deny his motion to certify issues of state law to the Washington Supreme Court and
the district court’s order granting summary judgment in favor of Defendant-Appellee
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Alcoa, Inc.1 We have jurisdiction under 28 U.S.C. § 1291. We review decisions not
to certify questions of state law to a state high court for abuse of discretion. Syngenta
Seeds, Inc. v. Cnty. of Kauai, 842 F.3d 669, 674 (9th Cir. 2016). We review de novo
our appellate jurisdiction, United States ex rel. Alexander Volkhoff, LLC v. Janssen
Pharmaceutica N.V., 945 F.3d 1237, 1241 (9th Cir. 2020), and summary judgment,
L.F. v. Lake Wash. Sch. Dist. #414, 947 F.3d 621, 625 (9th Cir. 2020). We affirm
under these standards. We also deny Casey’s renewed motion to certify questions
to the Washington Supreme Court.
1. Alcoa initially claimed we lack jurisdiction because Casey appealed from the
summary judgment order before the district court dismissed the other defendants to
this case under their settlement agreements with Casey. Counsel recently withdrew
that argument.
Withdrawal was appropriate here. The district court has since dismissed the
other defendants nunc pro tunc and entered a final judgment. Such intervening
events validate a premature notice of appeal, which will instead “be directed toward
a subsequently entered final decision dismissing the action,” Rano v. Sipa Press,
Inc., 987 F.2d 580, 584 (9th Cir. 1993), especially when “no practical benefits would
1
Clinton Casey died in 2020, so the personal representative of his estate
was substituted as the Appellant. For simplicity, “Casey” is used to refer to the
Appellant. Appellee Howmet Aerospace was formerly known as Alcoa, Inc., and
Arconic, Inc. It is referred to as “Alcoa” here.
2
accrue from a dismissal for lack of appellate jurisdiction,” Squaxin Island Tribe v.
Wash., 781 F.2d 715, 719 (9th Cir. 1986). “[T]here is no danger of piecemeal review
because no issue or claim remains in the district court. Accordingly, we have
jurisdiction over this appeal pursuant to 28 U.S.C. § 1291.” Rano, 987 F.2d at 584.
2. Casey contends the district court improperly denied his motion to certify these
questions to the Washington Supreme Court:
Are all chronic occupational diseases, including asbestos-related
diseases, exempt from the “deliberate” injury exception to the Industrial
Insurance Act [IIA], Wash. Rev. Code § 51.24.020, because it is never
“certain” that every exposed worker will develop disease?
Did the evidence marshalled by Mr. Casey in response to Alcoa’s
motion for summary [judgment] raise an issue of fact on whether or not
the “deliberate intention” exception was satisfied under [Wash. Rev.
Code] § 51.24.020?
We disagree. Certification to the Washington Supreme Court is proper only
when the relevant state law is not “clearly determined,” Wash. Rev. Code § 2.60.020
(2020), no state appellate opinions are instructive, Perez-Farias v. Global Horizons,
Inc., 668 F.3d 588, 589 (9th Cir. 2011), and answers are necessary to disposal of the
case, § 2.60.020. These criteria are not met here. The Washington Supreme Court
has held that asbestos exposure does not fit within the IIA’s “deliberate injury”
exception because “asbestos exposure is not certain to cause mesothelioma or any
other disease. It does cause a risk of disease, [which is] insufficient.” Walston v.
Boeing Co., 334 P.3d 519, 522 (Wash. 2014) (en banc). Casey’s summary judgment
3
evidence, which was similar to that offered in Walston, does not create a fact issue
on whether Alcoa knew he was certain to be injured by asbestos exposure. See id.
at 519–22; Walston v. Boeing Co., 294 P.3d 759, 761–62 (Wash. Ct. App. 2013),
aff’d 334 P.3d 519. And we need not decide if Walston bars all chronic disease-
based IIA claims to dispose of this appeal. See § 2.60.020. Because Casey’s
questions have been clearly answered by state law or are extraneous, the district
court properly denied certification. See § 2.60.020; Syngenta Seeds, 842 F.3d at 681
(stating that certification is unwarranted if “there is sufficient state law to enable [a
federal court] to make an informed decision on the issues” (cleaned up)). There was
no abuse of discretion in denying certification.
3. Casey asks us to certify the same questions to the Washington Supreme Court.
We deny the request for the same reasons that we held there was no abuse of
discretion in the district court’s denial of certification. Also “[t]here is a presumption
against certifying a question to a state supreme court after the federal district court
has issued a decision” which the plaintiff may overcome only by showing
“particularly compelling reasons why [he] should be allowed a second chance at
victory.” Alliance for Prop. Rights & Fiscal Resp. v. City of Idaho Falls, 742 F.3d
1100, 1108 (9th Cir. 2013) (cleaned up).
No compelling reason exists here. Casey and the amici seek certification on
the basis that the Washington Supreme Court misapplied state law in Walston. But
4
the Washington Supreme Court justices who dissented in Walston set out concerns
similar to those raised by Casey and the amici yet these arguments did not persuade
the majority. See 334 P.3d at 523–29 (Wiggins, J., dissenting). Casey and the amici
point to no later case as overruling Walston. See Lunsford v. Saberhagen Holdings,
Inc., 208 P.3d 1092, 1101 (Wash. 2009) (en banc) (explaining that the Washington
Supreme Court does not sub silentio overrule clear statements of law). The
Washington state legislature has not yet taken issue with Walston in the seven years
since it was decided and is presumed to have acquiesced in its holding. See Wash.
Indep. Tel. Ass’n v. Wash. Utils. & Transp. Comm’n, 64 P.3d 606, 615 n.14 (Wash.
2003) (en banc). Walston is dispositive because it mirrors Casey’s case and clearly
answered the questions he wants certified for his claims against Alcoa. See 334 P.3d
at 520–22. We certainly cannot disagree with the Washington Supreme Court
majority as to what its state law requires. Also, this appeal does not turn on whether
Walston bars all chronic disease claims under the IIA. See Wash. Rev. Code
§ 2.60.020 (2020). We deny Casey’s renewed motion to certify as a result. See
Idaho Falls, 742 F.3d at 1108.
4. Casey finally seeks reversal of the summary judgment order in Alcoa’s favor
on the basis that asbestosis, pleural plaques, and pleural thickening are compensable
injuries. It is beside the point. Even if that were true, Casey could survive summary
judgment only through evidence from which a reasonable juror could infer that
5
Alcoa knew he was certain to contract asbestos-related disease while working at
Alcoa. Walston, 334 P.3d at 522. He did not do that here, so we will not disturb the
district court’s summary judgment order. See id.
AFFIRMED. Casey’s renewed motion to certify questions of state law to
the Washington Supreme Court is DENIED.
6