Dennis v. Foster Wheeler Energy Corporation

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 11, 2025
• Docket: 23-4283
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 11 2025 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

ROSA DENNIS, individually and No. 23-4283 as successor-in-interest to PATRICK W. D.C. No. DENNIS (Deceased), 2:19-cv-09343-GW-KS Plaintiff - Appellant, MEMORANDUM* v.

FOSTER WHEELER ENERGY CORPORATION; FOSTER WHEELER LLC,

Defendants - Appellees,

and

AIR AND LIQUID SYSTEMS CORPORATION, sued individually and as successor-by merger to Buffalo Pumps, Inc., AMTROL, INC., individually and as successor-in interest to H.A. TRUSH, VIACOMCBS INC., formerly known as CBS Corporation; formerly known as Viacom Inc successor by merger to CBS Corporation, a Pennsylvania corporation; formerly known as Westinghouse Electric Corporation, GENERAL ELECTRIC COMPANY, VIAD CORP, sued

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. individually and as successor-in-interest to GRISCOME RUSSELL COMPANY, CRANE COMPANY, sued individually and as successor-in-interest to Chapman Valve Company, DOES, 1 through 400 Inclusive,

Defendants.

Appeal from the United States District Court for the Central District of California George H. Wu, Senior District Judge, Presiding

Argued and Submitted March 4, 2025 Pasadena, California

Before: IKUTA and CHRISTEN, Circuit Judges, and LIBURDI, District Judge.**

Appellant Rosa Dennis, individually and as successor-in-interest to Patrick

Dennis, appeals the district court’s order denying jury instructions on her claims for

strict liability and punitive damages against Appellees Foster Wheeler Energy

Corporation and Foster Wheeler LLC. We have jurisdiction under 28 U.S.C. § 1291

and affirm.

We review a district court’s rejection of proposed jury instructions de novo.

See United States v. Hairston, 64 F.3d 491, 493-94 (9th Cir. 1995) (stating questions

of law arising from proposed jury instructions are reviewed de novo).

** The Honorable Michael T. Liburdi, United States District Judge for the District of Arizona, sitting by designation.

2 23-4283 Relying on McIndoe v. Huntington Ingalls Inc., 817 F.3d 1170 (9th Cir. 2016),

the district court denied Appellant’s request to instruct jurors on strict liability. In

McIndoe, we considered whether the builders of a United States naval warship could

“be held strictly liable for defects in materials originally installed on the ships they

built.” Id. at 1173. We held that, under the Restatement (Third) of Torts: Products

Liability § 19 (1998), a warship is not a “product” that is “distributed commercially

for use or consumption.” See McIndoe, 817 F.3d at 1173. Naval warships are custom

built to specifications provided by the United States and sold exclusively to the

United States. See id. at 1174. They are not “distributed commercially.” Id. at 1173.

Here, the evidence shows the Navy underwent its customary request for

proposal process when procuring Foster Wheeler’s boilers for use in naval warships.

That process involved the Navy providing detailed specifications for each boiler,

“including requirements such as chemical composition, dimensions, required testing

and performance demonstrations, required labeling, packaging, and shipping

requirements, and similar content.” Foster Wheeler followed the Navy’s

specifications when building the boilers. Naval specifications “required the use of

asbestos for the gaskets, the packing, and the insulating block[s].”

Because Appellant offered no evidence to the contrary, there was no triable

factual issue over whether the boilers “enter[ed] the general stream of commerce”

like “commercially distributed or mass-produced” property. See id. at 1173, 1174

3 23-4283 n.3. Instead, the only evidence was that the boilers were custom-built property,

which, like the naval warship in McIndoe, are excluded from the realm of strict

products liability. See id. at 1173. Therefore, the district court did not err in rejecting

Appellant’s strict liability jury instruction.

Affirming the district court’s decision to exclude the strict liability jury

instruction means we need not consider Appellant’s arguments concerning the

rejected punitive damages instruction.1

AFFIRMED.

1 Because we do not address punitive damages, Appellees’ motion for judicial notice (Docket Entry No. 63) is denied as moot.

4 23-4283