1 Nov 05, 2025 2 3 SEAN F. MCAVOY, CLERK 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF WASHINGTON 8 9 No. 2:14-CV-00394-SAB 10 NEIL HORNSBY and MARICOR 11 POAGE HORNSBY, husband and wife, 12 Plaintiffs, ORDER GRANTING 13 v. PLAINTIFF’S MOTION TO SET 14 ALCOA INC., ASIDE JUDGMENT 15 Defendant. 16 17 Before the Court is Plaintiff’s Motion to Set Aside Judgment, ECF No. 35. 18 The motion was heard without oral argument.1 Plaintiff is represented by Beth 19 Bollinger and William Gilbert. Although Defendant was served on September 21, 20 2025, ECF No. 37, no notice of appearance has been filed, and no response to 21 Plaintiff’s motion has been filed by Defendant. 22 Plaintiff asks the Court to set aside the August 4, 2015 judgment and 23 reinstate the above-captioned case. Good cause exists to grant Plaintiff’s motion. 24 // 25 // 26
27 1 The Court has determined oral argument is not warranted. See LCivR 28 7(i)(3)(B)(iii). 1 PROCEDURAL BACKGROUND 2 The Court dismissed Plaintiff’s First Amended Complaint for failure to state 3 a claim in August 2015, ECF No. 24, and the Ninth Circuit affirmed. ECF No. 31. 4 It noted that while generally employers receive immunity from civil suits resulting 5 from on-the-job injuries under the Washington Industrial Insurance Act (IIA),2 6 they can be held liable for deliberately intending to injure their employees.3 The 7 courts relied on Walston v. Boeing Co., 181 Wash.2d 391 (2014), which held an 8 employer deliberately injures an employee if “the employer had actual knowledge 9 that an injury is certain to occur and willfully disregards that knowledge,”4 to find 10 Plaintiff failed to allege sufficient facts to show Defendant deliberately intended to 11 injury Plaintiff. 12 Recently, the Washington Supreme Court overruled Walston and held a 13 plaintiff can satisfy the deliberate injury exception to the exclusivity provision of 14 IIA if they demonstrate the employer had actual knowledge that latent diseases are 15 virtually certain5 to occur and willfully disregard such knowledge. Cockrum v. 16 C.H. Murphy/Clark-Ullman, Inc., 4 Wash.3d 874 (2025) (emphasis added). In so 17
18 2 Wash. Rev. Code § 51.04.010. 19 3 § 51.24.020. 20 4 Walston, 181 Wash.2d at 394 (emphasis added). 21 5 The court provided a nonexclusive list of facts that may be relevant in 22 determining whether the virtual certainty requirement is met: (1) the employer’s 23 knowledge of ongoing, repeated development of symptoms known to be associated 24 with the development of latent disease over time, (2) the employer’s knowledge of 25 symptoms developing in employees similarly situated to the plaintiff employee, (3) 26 the timing of such symptoms developing prior to or contemporaneous with the 27 plaintiff-employee's exposure(s), and (4) whether the exposure arises from a 28 common major cause within the employer’s control. 1 doing, the court noted that Walston incorrectly contradicted the plain text of the 2 statute and public policy behind the IIA6, and characterized Walston as “harmful,” 3 “a mistake,” and incorrect. Id. at 876. 4 BACKGROUND FACTS 5 From 2000 to 2002, and again from 2003 to 2008, Neil Hornsby worked at 6 Alcoa Wenatchee Works in various capacities in the pot rooms. In 2015, Hornsby 7 was diagnosed with congestive heart failure, Stage II. He then sued Alcoa under 8 Washington’s Industrial Insurance Act, RCW 51.24.020, alleging that Alcoa 9 deliberately injured him. Plaintiff has now been diagnosed with mesothelioma and 10 aluminosis. 11 MOTION STANDARD 12 Rule 60(b) allows a party to seek relief from final judgment and reopen a 13 case based on mistake or excusable neglect, newly discovered evidence, fraud, or 14 the void or prospectively inequitable status of a judgment. See Fed. R. Civ. P. 15 60(b)(1)–(5). Rule 60(b) also includes a “catchall” provision—Rule 60(b)(6)—that 16 allows a district court to reopen a case for “‘any other reason that justifies relief.’” 17 Kemp v. United States, 596 U.S. 528, 533 (2022). A party seeking relief based on 18 mistake or excusable neglect, new evidence, or fraud faces a 1-year limitations 19 period. See Fed. R. Civ. Proc. 60(c)(1). That time bar, however, does not apply to 20 motions for relief filed under Rule 60(b)(6). Id. Relief under Rule 60(b)(6) requires 21 extraordinary circumstances, and it is only available when Rules 60(b)(1) through 22 (b)(5) are inapplicable. Kemp, 596 U.S. at 533. 23 6 The court explained: 24 Walston is incorrect because it adds words to the statute where there are none 25 (excluding diseases caused by deliberate intention), renders other language superfluous (RCW 51.24.030(3)’s inclusion of “disease” as a type of injury 26 compensable in a cause of action under that chapter), and undermines the 27 policy of providing a cause of action for deliberately intended workplace injuries including diseases. 28 Id. at 888. 1 Generally, a change in the law does not constitute an extraordinary 2 circumstance justifying Rule 60(b)(6) relief. BLOM Bank SAL v. Honickman, 605 3 U.S. 204, 211 (2025). Otherwise, every time an appeals court or the Supreme 4 Court reached a conclusion of law different from that of a lower court, parties 5 adversely affected by the now defunct, previous law could seek to reopen their 6 case. See Gonzalez v. Crosby, 545 U.S. 524, 536–37 (2005). 7 That said, the Ninth Circuit has recognized in limited circumstances a 8 change in the controlling law can provides extraordinary circumstances that 9 justifying relief under Rule 60(b)(6). Henson v. Fidelity Nat’l Financial, Inc., 943 10 F.3d 434, 444 (9th Cir. 2019). In deciding a Rule 60(b)(6) motion based on 11 changes in the controlling law, courts are to assess the motion on a case-by-case 12 basis, evaluate the circumstances surrounding the specific motion before the court; 13 and balance the competing interests of finality of judgments and the “incessant 14 command of the court’s conscience that justice be done in light of all the facts.” Id. 15 (citations and quotations omitted) 16 “Rule 60(b)(6) is a grand reservoir of equitable power . . . and its affords 17 courts the discretion and power to vacate judgments whenever such action is 18 appropriate to accomplish justice.” Phelps v. Alameida, 569 F.3d 1120, 1135 (9th 19 Cir. 2009). 20 Analysis 21 Plaintiff’s motion is unopposed. For that reason alone, the Court will grant 22 the motion, set aside the judgment and reinstate the above-captioned case. 23 Additionally, Plaintiff has shown that extraordinary circumstances justify 24 reopening this case. As the Washington Supreme Court recognized, under its prior 25 decision in Walston, no employee could successfully sue for a latent disease like 26 mesothelioma because they could never satisfy the level of certainty required, even 27 though “it is undisputed that Alcoa knowingly exposed its employees to asbestos, 28 knowing that asbestos was hazardous and could lead to long-term injuries.” 1|| Cockrum, at 876. It also recognized Walston was harmful “because it denies relief to employees who happen to be injured in the form of disease that may take years 3|| to manifest rather than immediate and visible injuries.” /d. at 886.
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1 Nov 05, 2025 2 3 SEAN F. MCAVOY, CLERK 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF WASHINGTON 8 9 No. 2:14-CV-00394-SAB 10 NEIL HORNSBY and MARICOR 11 POAGE HORNSBY, husband and wife, 12 Plaintiffs, ORDER GRANTING 13 v. PLAINTIFF’S MOTION TO SET 14 ALCOA INC., ASIDE JUDGMENT 15 Defendant. 16 17 Before the Court is Plaintiff’s Motion to Set Aside Judgment, ECF No. 35. 18 The motion was heard without oral argument.1 Plaintiff is represented by Beth 19 Bollinger and William Gilbert. Although Defendant was served on September 21, 20 2025, ECF No. 37, no notice of appearance has been filed, and no response to 21 Plaintiff’s motion has been filed by Defendant. 22 Plaintiff asks the Court to set aside the August 4, 2015 judgment and 23 reinstate the above-captioned case. Good cause exists to grant Plaintiff’s motion. 24 // 25 // 26
27 1 The Court has determined oral argument is not warranted. See LCivR 28 7(i)(3)(B)(iii). 1 PROCEDURAL BACKGROUND 2 The Court dismissed Plaintiff’s First Amended Complaint for failure to state 3 a claim in August 2015, ECF No. 24, and the Ninth Circuit affirmed. ECF No. 31. 4 It noted that while generally employers receive immunity from civil suits resulting 5 from on-the-job injuries under the Washington Industrial Insurance Act (IIA),2 6 they can be held liable for deliberately intending to injure their employees.3 The 7 courts relied on Walston v. Boeing Co., 181 Wash.2d 391 (2014), which held an 8 employer deliberately injures an employee if “the employer had actual knowledge 9 that an injury is certain to occur and willfully disregards that knowledge,”4 to find 10 Plaintiff failed to allege sufficient facts to show Defendant deliberately intended to 11 injury Plaintiff. 12 Recently, the Washington Supreme Court overruled Walston and held a 13 plaintiff can satisfy the deliberate injury exception to the exclusivity provision of 14 IIA if they demonstrate the employer had actual knowledge that latent diseases are 15 virtually certain5 to occur and willfully disregard such knowledge. Cockrum v. 16 C.H. Murphy/Clark-Ullman, Inc., 4 Wash.3d 874 (2025) (emphasis added). In so 17
18 2 Wash. Rev. Code § 51.04.010. 19 3 § 51.24.020. 20 4 Walston, 181 Wash.2d at 394 (emphasis added). 21 5 The court provided a nonexclusive list of facts that may be relevant in 22 determining whether the virtual certainty requirement is met: (1) the employer’s 23 knowledge of ongoing, repeated development of symptoms known to be associated 24 with the development of latent disease over time, (2) the employer’s knowledge of 25 symptoms developing in employees similarly situated to the plaintiff employee, (3) 26 the timing of such symptoms developing prior to or contemporaneous with the 27 plaintiff-employee's exposure(s), and (4) whether the exposure arises from a 28 common major cause within the employer’s control. 1 doing, the court noted that Walston incorrectly contradicted the plain text of the 2 statute and public policy behind the IIA6, and characterized Walston as “harmful,” 3 “a mistake,” and incorrect. Id. at 876. 4 BACKGROUND FACTS 5 From 2000 to 2002, and again from 2003 to 2008, Neil Hornsby worked at 6 Alcoa Wenatchee Works in various capacities in the pot rooms. In 2015, Hornsby 7 was diagnosed with congestive heart failure, Stage II. He then sued Alcoa under 8 Washington’s Industrial Insurance Act, RCW 51.24.020, alleging that Alcoa 9 deliberately injured him. Plaintiff has now been diagnosed with mesothelioma and 10 aluminosis. 11 MOTION STANDARD 12 Rule 60(b) allows a party to seek relief from final judgment and reopen a 13 case based on mistake or excusable neglect, newly discovered evidence, fraud, or 14 the void or prospectively inequitable status of a judgment. See Fed. R. Civ. P. 15 60(b)(1)–(5). Rule 60(b) also includes a “catchall” provision—Rule 60(b)(6)—that 16 allows a district court to reopen a case for “‘any other reason that justifies relief.’” 17 Kemp v. United States, 596 U.S. 528, 533 (2022). A party seeking relief based on 18 mistake or excusable neglect, new evidence, or fraud faces a 1-year limitations 19 period. See Fed. R. Civ. Proc. 60(c)(1). That time bar, however, does not apply to 20 motions for relief filed under Rule 60(b)(6). Id. Relief under Rule 60(b)(6) requires 21 extraordinary circumstances, and it is only available when Rules 60(b)(1) through 22 (b)(5) are inapplicable. Kemp, 596 U.S. at 533. 23 6 The court explained: 24 Walston is incorrect because it adds words to the statute where there are none 25 (excluding diseases caused by deliberate intention), renders other language superfluous (RCW 51.24.030(3)’s inclusion of “disease” as a type of injury 26 compensable in a cause of action under that chapter), and undermines the 27 policy of providing a cause of action for deliberately intended workplace injuries including diseases. 28 Id. at 888. 1 Generally, a change in the law does not constitute an extraordinary 2 circumstance justifying Rule 60(b)(6) relief. BLOM Bank SAL v. Honickman, 605 3 U.S. 204, 211 (2025). Otherwise, every time an appeals court or the Supreme 4 Court reached a conclusion of law different from that of a lower court, parties 5 adversely affected by the now defunct, previous law could seek to reopen their 6 case. See Gonzalez v. Crosby, 545 U.S. 524, 536–37 (2005). 7 That said, the Ninth Circuit has recognized in limited circumstances a 8 change in the controlling law can provides extraordinary circumstances that 9 justifying relief under Rule 60(b)(6). Henson v. Fidelity Nat’l Financial, Inc., 943 10 F.3d 434, 444 (9th Cir. 2019). In deciding a Rule 60(b)(6) motion based on 11 changes in the controlling law, courts are to assess the motion on a case-by-case 12 basis, evaluate the circumstances surrounding the specific motion before the court; 13 and balance the competing interests of finality of judgments and the “incessant 14 command of the court’s conscience that justice be done in light of all the facts.” Id. 15 (citations and quotations omitted) 16 “Rule 60(b)(6) is a grand reservoir of equitable power . . . and its affords 17 courts the discretion and power to vacate judgments whenever such action is 18 appropriate to accomplish justice.” Phelps v. Alameida, 569 F.3d 1120, 1135 (9th 19 Cir. 2009). 20 Analysis 21 Plaintiff’s motion is unopposed. For that reason alone, the Court will grant 22 the motion, set aside the judgment and reinstate the above-captioned case. 23 Additionally, Plaintiff has shown that extraordinary circumstances justify 24 reopening this case. As the Washington Supreme Court recognized, under its prior 25 decision in Walston, no employee could successfully sue for a latent disease like 26 mesothelioma because they could never satisfy the level of certainty required, even 27 though “it is undisputed that Alcoa knowingly exposed its employees to asbestos, 28 knowing that asbestos was hazardous and could lead to long-term injuries.” 1|| Cockrum, at 876. It also recognized Walston was harmful “because it denies relief to employees who happen to be injured in the form of disease that may take years 3|| to manifest rather than immediate and visible injuries.” /d. at 886. And the court noted that “exposure to the expenses of the deliberate injury tort dissuades 5|| employers from perpetuating deliberate exposure to asbestos.” Jd. at 887-888 (quotation omitted). As the court saw it, “[e]mployers should not be permitted to play Russian roulette with workers lives.” /d. (quotation omitted). 8 Plaintiff was never given his day in court while his employer was given a 9|| pass, even though it may have had actual knowledge regarding the dangers of asbestos exposure and willfully disregarded that knowledge. Justice is served by setting aside the judgment in this matter and reinstating this case. 12 Accordingly, IT IS HEREBY ORDERED: 13 1. Plaintiff's Motion to Set Aside Judgment, ECF No. 35, is GRANTED. 14|| The November 13, 2025 hearing on the motion is STRICKEN. 15 2. The above-captioned action is REINSTATED. 16 3. Plaintiff granted leave to file a Second Amended Complaint. If no 17|| Amended Complaint is filed within fourteen (14) days from the date of this 18|| Order, Defendant shall file its Answer to Plaintiff's First Amended Complaint no later than December 3, 2025. If a Second Amended Complaint is filed, Defendant shall file its response according to the deadlines set forth in the Fed. R. Civ. P. 21 IT IS SO ORDERED. The District Court Executive is hereby directed to 22|| file this Order and provide copies to counsel. 23 DATED this 5th day of November 2025.
26 an in hur 27 Chief United States District Judge 28 ORDER GRANTING PLAINTIFF’S MOTION TO SET ASIDE TWINORADAIT OG;