Perkins v. United States

Opinion

1 2 3

4 5 UNITED STATES DISTRICT COURT 6 WESTERN DISTRICT OF WASHINGTON AT SEATTLE 7 TRISTAN ROSE PERKINS, Independent CASE NO. C22-5701-KKE 8 Administratrix of Succession of the Decedent GERALDINE RABB PERKINS, FINDINGS OF FACT AND 9 CONCLUSIONS OF LAW Plaintiff(s), 10 v.

11 UNITED STATES OF AMERICA,

12 Defendant(s).

13 This matter was tried before the Court, sitting without a jury, for eight days in June 2024, 14 with closing arguments concluding the trial on August 5, 2024. Dkt. Nos. 104–06, 110, 112, 115– 15 16, 127.1 The Court, having considered the evidence before it, including the testimony of the 16 witnesses and exhibits admitted, having heard argument, and considered the briefs and memoranda 17 of counsel, makes findings of fact and conclusions of law as stated herein. For the reasons 18 explained herein, the Court enters judgment for the Defendant. 19

24 1 This order refers to docket entries using their CM/ECF page numbers. 1 I. INTRODUCTION 2 Geraldine Rabb Perkins died on June 6, 2020, after she was diagnosed with pleural 3 mesothelioma. Plaintiff Tristan Rose Perkins,2 Geraldine’s daughter and the administrator of her 4 estate, sued the Defendant, the United States (“the Government”), for wrongful death and 5 survivorship under the Federal Tort Claims Act (“FTCA”). According to Plaintiff’s complaint, 6 Geraldine’s mesothelioma was caused in part by para-occupational and environmental exposure 7 to asbestos fibers originating from Puget Sound Naval Shipyard (“the Shipyard”), where her 8 husband, Harang Joseph Perkins, worked while their family lived in Bremerton, Washington, 9 between approximately 1968 and 1974. Specifically, Plaintiff claims that Geraldine was exposed 10 para-occupationally through H.J., an enlisted U.S. Navy Machinist’s Mate who worked at the 11 Shipyard and brought home his work clothes to be laundered by Geraldine. Plaintiff also claims 12 that Geraldine was exposed to asbestos via fibers that escaped from the Shipyard and reached the

13 Perkins home. 14 On June 26, 2023, the Court dismissed the following claims for lack of subject matter 15 jurisdiction under the FTCA’s discretionary function exception: “[c]laims based on events arising 16 before March 1970; claims based on the Navy’s [alleged] failure to provide [H.J.] with protective 17 equipment like a dust respirator, laundry service, and/or a place to shower and/or change; and 18 claims based on the Navy’s failure to warn of para-occupational and environmental asbestos 19 exposure hazards[.]” Dkt. No. 23 at 14. 20 In March 2024, following the close of discovery, the Government filed a motion to dismiss 21 the remaining claims for lack of subject matter jurisdiction, and requested summary judgment in 22 the alternative. Dkt. No. 51. The Court denied the motion for summary judgment and denied the

2 In the interest of clarity, Geraldine and H.J. Perkins are referred to by their first names, and their daughter Tristan 24 Perkins is referred to as Plaintiff. 1 motion to dismiss without prejudice, finding questions of fact that must be resolved before it could 2 determine whether an exception to the FTCA’s waiver of sovereign immunity applied. Dkt. No. 3 73. The Court found that the motion to dismiss could be “re-raised, if appropriate, at trial.” Id. at

4 14. Therefore, the remaining claims that proceeded to trial were limited to Plaintiff’s claims 5 arising from allegations that Geraldine was para-occupationally exposed to asbestos between 6 March 1970 and August 1972, and environmentally exposed to asbestos between March 1970 and 7 March 1974. 8 At the end of trial, during closing argument, the Government renewed its motion to dismiss 9 those claims for lack of subject matter jurisdiction. As explained in the next section, the Court 10 denies that motion, and then turns to consider the merits of Plaintiff’s claims. 11 II. THE GOVERNMENT’S MOTION TO DISMISS IS DENIED 12 A. Legal Standards

13 A complaint must be dismissed under Federal Rule of Civil Procedure 12(b)(1) if, 14 considering the factual allegations in the light most favorable to the plaintiff, the action: (1) does 15 not arise under the Constitution, laws, or treaties of the United States, or does not fall within one 16 of the other enumerated categories of Article III, Section 2, of the Constitution; (2) is not a case or 17 controversy within the meaning of the Constitution; or (3) is not one described by any jurisdictional 18 statute. Baker v. Carr, 369 U.S. 186, 198 (1962); see also 28 U.S.C. §§ 1331 (federal question 19 jurisdiction), 1346(b)(1) (United States as a defendant). 20 The United States, as sovereign, is immune from suit unless it consents to be sued. See 21 United States v. Mitchell, 445 U.S. 535, 538 (1980). The FTCA, the statute upon which this case 22 is brought, is a limited waiver of sovereign immunity. See 28 U.S.C. § 1346(b). The FTCA is the

23 exclusive remedy for state law torts committed by federal employees within the scope of their 24 employment. 28 U.S.C. § 2679(b)(1). “The FTCA was created by Congress with the intent to 1 compensate individuals harmed by government negligence, and as a remedial statute, it should be 2 construed liberally, and its exceptions should be read narrowly.” Terbush v. United States, 516 3 F.3d 1125, 1135 (9th Cir. 2008) (cleaned up).

4 One of the exceptions to the FTCA’s waiver of sovereign immunity applies to discretionary 5 governmental conduct: “The discretionary function exception insulates certain governmental 6 decision-making from judicial second guessing of legislative and administrative decisions 7 grounded in social, economic, and political policy through the medium of an action in tort.” Myers 8 v. United States, 652 F.3d 1021, 1028 (9th Cir. 2011) (cleaned up). A two-step test is used to 9 determine whether the discretionary function exception applies. Terbush, 516 F.3d at 1129. In 10 the first step, the court determines “whether the challenged actions involve an element of judgment 11 or choice.” Id. (cleaned up). “The discretionary element is not met where a federal statute, 12 regulation, or policy specifically prescribes a course of action for an employee to follow.” Id.

13 (cleaned up). The inquiry ends if there is such a statute or policy directing mandatory and specific 14 action “because there can be no element of discretion when an employee has no rightful option but 15 to adhere to the directive.” Id. (cleaned up). 16 If the challenged actions do involve an element of judgment or choice, then the court turns 17 to the second step in the test. Terbush, 516 F.3d at 1129. This step requires the court to “consider 18 ‘whether that judgment is of the kind that the discretionary function exception was designed to 19 shield,’ namely, ‘only governmental actions and decisions based on considerations of public 20 policy.’” Id. (quoting Berkovitz v. United States, 486 U.S. 531, 536–37 (1988)). The Supreme 21 Court explained in United States v. Gaubert that “if a regulation allows the employee discretion, 22 the very existence of the regulation creates a strong presumption that a discretionary act authorized

23 by the regulation involves consideration of the same policies which led to the promulgation of the 24 regulations.” 499 U.S. 315, 324 (1991). “When established governmental policy, as express or 1 implied by statute, regulation, or agency guidelines, allows a Government agent to exercise 2 discretion, it must be presumed that the agent’s acts are grounded in policy when exercising that 3 discretion.” Id.

4 B. The Government Failed to Establish That All Shipyard Policies During the Relevant Period Preserved the Government’s Discretion. 5 Plaintiff’s claims that survived to trial were based on an allegation that the Navy had failed 6 to follow its own asbestos-related policies, and that this failure led Geraldine to be exposed to 7 asbestos, which ultimately led to her fatal mesothelioma. See Dkt. No. 1 ¶¶ 111–15. As a result 8 of prior Court orders dismissing certain claims, the claims remaining for trial were: (a) Plaintiff’s 9 claim of Geraldine’s para-occupational exposure from March 1970 to August 1972, based on the 10 Navy’s alleged failure to follow asbestos-handling procedures as detailed in NAVMAT P-5100 11 (“P-5100”), NAVSHIPS Instruction 5100.26 (“5100.26”), and Chapter 9390 of the Naval Ships 12 Technical Manual (“Chapter 9390”), which led to asbestos dust adhering to H.J.’s clothing that 13 was brought home for laundering; and (b) Plaintiff’s claim for Geraldine’s environmental exposure 14 from March 1970 to March 1974, based on the Navy’s alleged violation of policies regarding 15 asbestos handling and clean-up required in P-5100, 5100.26, and Chapter 9390, which led to the 16 release of asbestos fibers that traveled from the Shipyard to Geraldine’s home. See Dkt. No. 23 at 17 6–9, 14; Dkt. No. 73 at 13. 18 As noted above, in its order denying the Government’s motion to dismiss without 19 prejudice, the Court found factual questions as to whether the Shipyard policies were mandatory 20 and specific for purposes of the first step of the test for applying the FTCA’s discretionary function 21 exception. Dkt. No. 73 at 10–12. 22 P-5100, 5100.26, and Chapter 9390 prescribe a number of asbestos-related procedures that 23 were arguably not strictly followed at the Shipyard. Specifically, P-5100 lists a number of 24 1 procedures that promote the safe handling of asbestos, including, for example, instructions that: 2 asbestos dust concentrations not exceed a specified number; scrap material containing asbestos be 3 wet down before it is shoveled, hauled, or dumped; discarded materials containing asbestos be

4 placed in sealed plastic bags for removal and disposal; personnel removing asbestos-containing 5 materials be provided clean coveralls at the beginning of each shift; removal of asbestos-containing 6 materials be performed only in designated areas with barriers to prevent dust escape. Ex.3 39. 7 5100.26 and Chapter 9390 prescribe similar “appropriate safety precautions” for use of asbestos- 8 containing materials. Exs. 99, 103. 9 Plaintiff alleges that the Government was required to follow those precautions and that its 10 failure to do so was negligent. According to Plaintiff, if the Government had followed the 11 precautions listed in P-5100, 5100.26, and/or Chapter 9390, H.J.’s work clothes would not have 12 been contaminated with significant asbestos dust that contaminated Geraldine when H.J. brought 13 them home for laundering, nor could significant asbestos dust have escaped from the Shipyard to 14 travel to the Perkins home.4 15 The Government argues that it cannot be liable for failing to follow any asbestos control 16 rule during the time period relevant to this case because none of these policies created mandatory 17 obligations. Specifically, the Government presented evidence that because P-5100 was issued by 18 the Naval Material Command, which is outside the Shipyard’s chain of command, it was not 19 binding on the Shipyard. With respect to 5100.26, the Government argues that although it was 20 issued by a body within the Shipyard’s chain of command (the Naval Ship Systems Command), 21 22 3 In this order, the Court refers to the exhibits by number as admitted during trial. See Dkt. No. 129. 23 4 P-5100, 5100.26, and Chapter 9390 do not set out precautions that would allow the Navy to prevent the release of all asbestos fibers, but it is Plaintiff’s position that if these policies had been complied with, the release of asbestos 24 fibers would have been “substantially and significantly reduced.” Dkt. No. 66 at 36. 1 its language preserves discretion and does not create mandatory obligations on the Government 2 that could give rise to tort liability if not followed. 3 The Government’s arguments as to the discretionary nature of P-5100 and 5100.26 are

4 supported by evidence submitted at trial. Roger Beckett, who was an industrial hygienist at the 5 Shipyard from 1968 until 1998, testified that P-5100 was issued by a body outside the Shipyard’s 6 chain of command, such that the document was not binding on the Shipyard. Dkt. No. 119 at 55– 7 56, 116–17. The Court relies on Mr. Beckett’s testimony to find that P-5100 was not a mandatory 8 directive, such that the Navy’s failure to follow its provisions constitutes discretionary conduct. 9 Mr. Beckett testified that 5100.26, on the other hand, was implemented within the chain of 10 command, such that it was binding on the Shipyard. Dkt. No. 119 at 118–19, 152–55. The Court 11 relies on this testimony to find that 5100.26 constitutes a policy binding on the Shipyard, to the 12 extent that its provisions are phrased with mandatory language, although not all of its provisions

13 are mandatory. For example, 5100.26 provides that “[i]nsulation workers should be provided with 14 clean coveralls at the beginning of each shift or as often as needed” and that clean coveralls “will” 15 be provided at the start of each shift “[i]n removal operations that involve dusty work[.]” Ex. 99 16 at 4, 7. Neither of these sections of 5100.26 are mandatory requirements applicable to the facts of 17 this case: the use of “should” with respect to insulation workers implies discretion, as does the 18 directive to provide coveralls when removal operations involve dusty work. The wording of these 19 provisions indicates that the relevant parts of 5100.26 required discretion in order to be applied. 20 Chapter 9390 appears to be mandatory and, in some instances, specific. See Ex. 103. This 21 document, which was effective as of July 1972, reiterates many of the procedures outlined in P- 22 5100. For example, Chapter 9390 requires that “[d]iscarded and scrap asbestos material shall be

23 immediately placed in plastic bags which are then to be sealed for removal and disposal.” Id. at 24 3. It also requires that workers performing rip-out “shall be supplied clean overalls or disposable 1 coveralls for each work shift[,]” and that the areas where asbestos-containing products are removed 2 “shall be confined by means of curtains, portable partitions, etc., to prevent excessive 3 contamination of other areas.” Id. Chapter 9390 was issued by Naval Ships Systems Command,

4 which is within the Shipyard’s chain of command and is the same body that issued 5100.26. But 5 unlike 5100.26, Chapter 9390 uses some mandatory language to describe asbestos-handling 6 procedures.5 See Ex. 103. Because this document converts the advisory guidance found in P-5100 7 into some mandatory and specific rules, and the Government did not show that Chapter 9390 is 8 not binding on the Shipyard, the Government has failed to show that the first step of the 9 discretionary function exception has been satisfied with respect to the mandatory and specific 10 provisions of Chapter 9390. Accordingly, the Court’s inquiry ends here, and the Government’s 11 motion to dismiss for lack of jurisdiction must be denied. 12 The Court therefore proceeds to enter the following findings of fact and conclusions of law 13 in adjudicating the merits of Plaintiff’s claims. 14 B. FINDINGS OF FACT 15 A. H.J. Served In the United States Navy from 1959 to 1975. 16 1. H.J. enlisted in the United States Navy in February 1959. Ex. 12 at 372. He served 17 in the United States Navy from February 1959 through October 31, 1975. Id. at 124. 18 2. From 1962 until 1968, H.J. held the rating of Machinist’s Mate Second Class 19 (“MM2”). Ex. 12 at 265, 319. On March 16, 1968, H.J. achieved the rating of Machinist’s Mate 20 First Class (“MM1”) and retired from the United States Navy with that same rating in 1975. Id. at 21 319, 374; Dkt. No. 89 at 2. 22 5 Some provisions of Chapter 9390 are discretionary, however. For example, Chapter 9390 instructs that “[p]ortable 23 mechanical exhaust ventilation should be used to remove airborne dust. Air should be exhausted into bags or suitable devices to catch dust.” Ex. 103 at 3. Other parts of Chapter 9390 apply only under certain circumstances, which suggests that an exercise of discretion is needed. See, e.g., id. (instructing that certain procedures be undertaken “in a 24 manner that will minimize airborne dust” or only “[w]hen working in confined spaces”). 1 3. A Navy Machinist’s Mate is a sailor trained to operate and maintain mechanical 2 equipment aboard U.S. Navy ships. Navy Machinist’s Mates also have collateral duties. Dkt. No. 3 123 at 87–88.

4 4. A Machinist’s Mate Third Class (“MM3”) is the entry-level petty officer rating, 5 considered a journeyman who is transitioning to a supervisor. Dkt. No. 123 at 88. An MM2 is the 6 next step up from a third-class petty officer, and has greater expertise and increasing supervisory 7 responsibilities, with more of a paperwork burden. Id. at 89. 8 5. An MM1 is considered a supervisor or manager who is evaluated on their ability to 9 get work done through others, as opposed to doing the work themselves. Dkt. No. 123 at 90. As 10 an MM1, therefore, H.J. would not have been expected to have direct, hands-on work with 11 asbestos-containing material. Id. at 113–14. 12 6. From 1963 to 1968, when H.J. was an MM2, he was stationed at Naval bases in

13 Portsmouth, Virginia, and Charleston, South Carolina. During these years, H.J. was attached to 14 six different ships. Ex. 12 at 323–29. 15 7. H.J. was transferred to the Naval Inactive Ship Maintenance Facility (“NISMF”) 16 located at the Shipyard in Bremerton in July 1968, as an MM1. He reported to NISMF on 17 September 3, 1968, and served there until June 14, 1970. Ex. 12 at 329. 18 8. Ships were sent to the NISMF for decommission, deactivation, and mothballing, to 19 be available for activation if needed for a national emergency. Dkt. No. 123 at 92–93. 20 9. During the relevant timeframe, H.J. was assigned to the NISMF from March 1970 21 to June 1970. During those months, H.J. had various assignments, including steam heating system 22 maintenance, and he stood junior officer of the deck watches and was the duty section leader. Dkt.

23 No. 123 at 91, Ex. 12 at 351. 24 1 10. Minimal work occurs at the NISMF. Upon arrival, ships are put under a 2 dehumidification system and the power is cut. Dkt. No. 123 at 92–93. A couple of ships at the 3 NISMF serve as barracks and a command ship serves as an office and repair space. Id. at 93.

4 11. Navy sailors assigned to the NISMF were primarily responsible for custody of the 5 ships and for performing the final ship inactivation. Dkt. No. 123 at 114. This fact was reinforced 6 by testimony from Plaintiff’s witness David Jensen, who worked as a pipefitter at the Shipyard 7 from 1971 to 1982, and continued to work at the Shipyard in management positions until his 8 retirement in 2010. Dkt. No. 120 at 4–5. Mr. Jensen testified that a sailor stationed at NISMF 9 generally would not remove parts from the ships housed there; rather, if a pipefitter needed a part, 10 the pipefitter would go to the NISMF to remove the part himself. Id. at 37–38. 11 12. There is no evidence that any major repairs or maintenance were performed at 12 NISMF between March 1970 and June 1970. Dkt. No. 123 at 93–94.

13 13. As an MM1 at the NISMF, H.J. would have served as a first-line supervisor 14 instructing third- and second-class petty officers to complete their work assignments; he would not 15 have performed hands-on equipment maintenance and repair work himself. Moreover, there is no 16 evidence that H.J. (or anyone else) would have performed insulation rip-out between March 1970 17 and June 1970 at the NISMF. Dkt. No. 120 at 36; Dkt. No. 123 at 93–94, 114. 18 14. Following his assignment to the NISMF, H.J. was deployed to Vietnam, Japan, and 19 the Philippines to support the United States’ fleet operations in southeast Asia. While deployed, 20 H.J. was assigned to the USS Sacramento, reporting to the ship at Subic Bay, Philippines in May 21 1971. Dkt. No. 123 at 95–96; Ex. 12 at 329–30. 22 15. The USS Sacramento was the lead ship in the AOE class. Dkt. No. 123 at 96–97.

23 The AOE class was a replenishment oiler and cargo ship; such vessels brought fuel, ammunition, 24 1 and supplies to deployed ships (e.g., aircraft carriers, destroyers, frigates, etc. that were deployed). 2 Id. at 96–97, 105. 3 16. H.J. joined the USS Sacramento while she was conducting operations in the Gulf

4 of Tonkin off the coast of Vietnam. Dkt. No. 123 at 114–15. As an MM1, he would have continued 5 to serve as a first-line supervisor, instructing third- and second-class petty officers to complete 6 work while removing himself from hands-on involvement with equipment maintenance and repair. 7 Id. at 115. 8 17. During his June to December 1971 evaluation period, H.J. remained attached to the 9 USS Sacramento, assigned to the forward engine room for maintenance and supervisory duties. 10 Ex. 12 at 348. The USS Sacramento returned to the Shipyard for a “Regular Overhaul” from 11 December 1, 1971, until June 9, 1972. Dkt. No. 123 at 121, Dkt. No. 89 at 3. 12 18. “Regular Overhaul” activities, such as those performed at the Shipyard on the USS

13 Sacramento in the period between December 1, 1971 and June 9, 1972, could have involved the 14 creation of asbestos-containing dust on board the ship when certain types of work were performed. 15 Dkt. No. 89 at 3. 16 19. Typically, at the beginning of a shipyard overhaul or repair period, insulation must 17 be removed from the piping systems that require replacement to facilitate repairs to other systems. 18 Dkt. No. 89 at 3. 19 20. As an MM1, H.J. would not have performed the hands-on labor of ripping out 20 insulation during the USS Sacramento’s regular overhaul. Mr. Jensen (the former Shipyard 21 pipefitter) testified that an MM1 did not do rip-out at the Shipyard. Dkt. No. 120 at 36. 22 21. In December 1971 and January 1972, H.J. was assigned to the USS Sacramento’s

23 Engineering Department as Training Officer/Administrative Assistant (Ex. 12 at 346), an 24 assignment that entailed mostly classroom instruction and/or paperwork and did not involve hands- 1 on work with asbestos-containing material. Dkt. No. 123 at 99–101. Following this 2 training/administrative assignment, on January 22, 1972, H.J. was transferred to San Diego until 3 April 21, 1972, for several instructional school programs. Dkt. No. 123 at 101, Ex. 12 at 279.

4 22. During the remainder of the USS Sacramento’s overhaul period (April 22, 1972, to 5 June 9, 1972), H.J.’s assignments would not have necessarily involved work with asbestos- 6 containing material. H.J. was assigned to the petroleum, oil, and lubricants (“POL”) division, 7 which was responsible for the onload, quality assurance, and transfer, of cargo fuel. Dkt. No. 123 8 at 101–02, Ex. at 346. Most POL systems did not use asbestos insulation, so H.J.’s work with or 9 near asbestos would have been extremely limited during this period. Id. at 103. Further, although 10 H.J.’s work in the POL division involved collateral duties with the Nuclear, Biological and 11 Chemical Warfare system, this assignment did not involve asbestos-containing material. Id. at 12 102–05.

13 23. Upon completion of the USS Sacramento’s regular overhaul period, H.J. took some 14 scheduled leave. Ex. 12 at 274. H.J. was still assigned to the POL division, so his work between 15 June 1972 and August 1972 would have entailed responsibilities associated with loading cargo 16 fuel aboard the ship. Dkt. No. 123 at 105. During this period, the USS Sacramento made stops 17 along the coast of Washington and California to replenish supplies and fuel before its next 18 deployment to Vietnam, which occurred on August 11, 1972. Id. 19 24. On August 11, 1972, H.J. was “absent of sailing,” which means that he was absent 20 without leave, and the USS Sacramento departed without him. Dkt. No. 123 at 105–06, Ex. 12 at 21 289. 22 25. On August 12, 1972, H.J. was hospitalized and then placed on permanent limited

23 duty, due to health issues unrelated to asbestos exposure. Ex. 12 at 230. H.J.’s work aboard ships 24 ended upon placement on limited duty, and he would not have been expected to work with or near 1 asbestos-containing material after August 12, 1972. Dkt. No. 123 at 106–09. H.J. was assigned 2 to the bowling alley, the hobby shop, and barracks, and he received treatment for his physical and 3 mental ailments into 1974. Id. at 106–08; Ex. 12 at 344-45.

4 26. H.J. was transferred to Corpus Christi, Texas, in March 1974. Dkt. No. 123 at 109, 5 Ex. 12 at 281. His family went with him. Dkt. No. 121 at 108. 6 B. Geraldine Lived in Bremerton During the Relevant Period. 7 27. H.J. and Geraldine were married on December 25, 1963. Dkt. No. 89 at 2. They 8 remained married until H.J. died in 1979. Dkt. No. 121 at 124, 126. 9 28. Between 1963 and 1974, Geraldine resided with her husband near his duty stations. 10 From 1963 to 1967, Geraldine lived in Portsmouth, Virginia. Dkt. No. 120 at 58–59. From 1967 11 to 1968 or 1969, Geraldine lived in Charleston, South Carolina. Id. at 59–60. Geraldine moved 12 to Bremerton at some point in 1968 or 1969 after H.J.’s transfer to the NISMF. Id. at 60–61, Dkt.

13 No. 121 at 100. 14 29. Between 1969 and 1974, Geraldine resided at 3733 D Street in Bremerton, 15 Washington. Dkt. No. 89 at 5. 16 30. One of Geraldine and H.J.’s daughters, Lisa Perkins, testified that she witnessed 17 Geraldine laundering H.J.’s clothes during the relevant time period that Plaintiff alleges that 18 Geraldine was para-occupationally exposed to asbestos (March 1970 to August 1972). Dkt. No. 19 120 at 46–49. Lisa testified that she observed that H.J.’s clothes were “dusty” and “dingy,” and 20 Geraldine would shake and separate the clothes before washing. Id. Lisa testified that she 21 remembered her mother washing H.J.’s clothes even before the family moved to Bremerton when 22 she was four years old. Id. at 64.

23 24 1 31. The scientific evidence shows that inhalation of asbestos dust, at sufficient dose 2 and duration, and depending on fiber type, may increase the risk of developing malignant 3 mesothelioma for some individuals. Dkt. No. 124 at 30, 38–39.

4 C. The Navy Considered and Implemented Asbestos Control Procedures in the 1960s and 1970s. 5 32. In the 1960s and 1970s, the Shipyard was a naval facility that conducted 6 construction and repair activities for U.S. Navy vessels. Dkt. No. 119 at 35. During this period, 7 the Shipyard was a complex, full-service industrial facility. Numerous trades operated at the 8 Shipyard, including for example, sheet metal shop, pipe covering shop, ship fitter shops, welder 9 shops, forge, foundry, boilermakers, and one of the largest machine shops on the West Coast. Id. 10 at 95–96. The Shipyard had approximately 10,000 employees at any given time. Dkt. No. 119 at 11 36. 12 33. At trial, Mr. Beckett testified about the Navy’s industrial hygiene program at the 13 Shipyard, the Navy’s understanding of asbestos risks, and the Shipyard’s asbestos control practices 14 during the relevant period. Mr. Beckett began working at the Shipyard as a chemist in 1963, then 15 as an industrial hygienist from roughly 1965 until 1972. Dkt. No. 119 at 34–35. In 1972, Mr. 16 Beckett was promoted to supervisor in the Shipyard’s Industrial Hygiene Division. Id. at 35. 17 Shortly thereafter, Mr. Beckett was transferred to the Naval Regional Medical Center, where he 18 was responsible for all industrial hygiene activities for the Navy in the Pacific Northwest until his 19 retirement in 1998. Id. at 35–36, 132. 20 34. The Shipyard Commander was “responsible” for occupational health at the 21 Shipyard. Dkt. No. 119 at 36. The Shipyard’s industrial hygienists were responsible for 22 recognizing, evaluating, and recommending controls for occupational health hazards other than 23 24 1 radiation. Id. at 35–36. The Shipyard’s industrial hygiene division had no authority over Shipyard 2 personnel. Id. at 103–05. 3 35. The United States Navy was aware of risks associated with asbestos exposure

4 before March 1970. Dkt. No. 89 at 6. 5 36. In the 1960s and 1970s, asbestos dust was one of numerous occupational health 6 hazards that the Shipyard monitored. Dkt. No. 119 at 37–39. Other hazards included, for example, 7 lead, painting, abrasive blasting, chemical cleaning, fiberglass, heat stress, beryllium, ionizing 8 radiation, welding fumes, carbon monoxide, noise, acids, organic degreasing agents, electroplating 9 processes, and fiberglass dust. Id. at 37–39, 96–97, 123–24. The Navy Bureau of Medicine 10 (“BUMED”) distributed quarterly reports disclosing occupational concerns encountered at U.S. 11 Navy shipyards to the various Navy components. Id. at 41–42; Ex. 89 (BUMED List of 12 Occupational Health Hazards, Release No. 43 (June 22, 1965)).

13 37. Prior to 1975, certain shipyard workers who participated in the repair or overhaul 14 of U.S. Navy ships would typically remove, install, and repair thermal and anti-sweat insulation 15 and lagging installed on piping systems and equipment throughout ships. Dkt. No. 89 at 3. 16 Although various types of thermal and anti-sweat insulants suitable for use with shipboard piping 17 systems contained asbestos, other types did not. See, e.g., Dkt. No. 123 at 149. 18 38. The existence of asbestos on a ship or at a shipyard is not indicative of the potential 19 for inhalation of asbestos dust or environmental emissions. Dkt. No. 123 at 170. Asbestos fibers 20 can only be emitted and potentially inhaled if “liberated” (i.e., airborne). Id. 21 39. In the 1960s, asbestos was known to cause asbestosis. Dkt. No. 119 at 42. 22 Asbestosis is a fibrotic change in the lung (i.e., scar tissue) caused by inhalation of asbestos. Id.

23 The scientific literature at that time indicated that asbestosis occurred in insulation workers 24 regularly exposed to asbestos. Ex. 39 at 21, Ex. 97 at 9 (Shipyard March 1970 Study). 1 40. In the 1960s and 1970s, although mesothelioma had been identified as a risk, health 2 care experts did not consider it a significant problem; rather, asbestosis was the predominant 3 concern in those days. Dkt. No. 119 at 98.

4 41. In the 1960s and early 1970s, Shipyard officials understood that only personnel 5 who worked directly with industrial dust could have enough exposure to pose a significant health 6 threat. See, e.g., Dkt. No. 119 at 98–99, 145–46. Such personnel at the Shipyard were pipe 7 coverers, insulators, and, to some extent, boilermakers—i.e., workers “ripping out” or removing 8 old asbestos insulation, fabricating new asbestos insulation, and installing new asbestos insulation. 9 Id. at 98–99, Ex. 39 at 21, Ex. 97 at 10–13. 10 42. In the early 1970s, Shipyard industrial hygienists had to manage and advise on 11 multiple major concerns, such as lead exposure and the many health issues associated with 12 servicing nuclear powered ships. Dkt. No. 119 at 9.

13 43. Chapter 9390 of the Naval Ships Technical Manual required certain procedures for 14 asbestos handling. Ex. 103. For example, Chapter 9390 required that “[d]iscarded and scrap 15 asbestos material shall be immediately placed in plastic bags which are then to be sealed for 16 removal and disposal.” Id. at 3. It also required that workers performing rip-out “shall be supplied 17 clean overalls or disposable coveralls for each work shift[,]” and that the areas where asbestos- 18 containing products are removed “shall be confined by means of curtains, portable partitions, etc., 19 to prevent excessive contamination of other areas.” Id. 20 44. Neighborhood asbestos exposure from shipyard operations was not a concern at the 21 Shipyard. Mr. Beckett testified that industrial hygienists believed the Shipyard was, for the most 22 part, successfully controlling asbestos workplace exposure to employees at risk from asbestos

23 exposure (i.e., shipyard workers who handled asbestos-containing material eight hours/day, forty 24 hours/week). Dkt. No. 119 at 113–14. Therefore, Shipyard industrial hygienists believed that if 1 they could control the work environment inside the Shipyard, asbestos exposure for individuals 2 “outside the gate” would “not be a problem” particularly because there is “a tremendous dilution” 3 for any fiber that becomes airborne in the shipyard. Id.

4 D. Geraldine’s Risk for Para-Occupational Exposure 5 45. Para-occupational asbestos exposure may occur when workers who handle large 6 amounts of asbestos brings asbestos fibers home on their clothes, and then the clothes are 7 purportedly shaken out in the home. Dkt. No. 124 at 59–60. 8 46. The published scientific literature regarding para-occupational exposure typically 9 involves exposure through contact with insulators, or other types of workers regularly exposed to 10 asbestos. Dkt. No. 124 at 48–49, 60–61, 139–40, 148. 11 47. H.J. was not an insulator, and he would not have performed the work of an insulator 12 in the 1970s. Dkt. No. 123 at 169, Dkt. No. 124 at 45.

13 48. H.J. was an MM1 during all time periods relevant to this case, and as an MM1, he 14 would not have performed insulation rip-out or been working with or near asbestos-containing 15 products when he was present at the Shipyard after March 1970. Dkt. No. 123 at 91–109, Dkt. 16 No. 124 at 45–47. 17 49. That H.J. arrived at home after work wearing dusty clothes is not necessarily 18 indicative of his workplace asbestos exposure. Most dirty, dusty environments do not contain 19 asbestos dust; rather, it is typically nuisance dust, and the content is based on the environment. 20 Dkt. No. 124 at 64–65. For example, shipyards are quite dusty due to road dust. Id. 21 50. Plaintiff’s witness Mr. Jensen (a former Shipyard pipefitter) testified that he 22 observed dust on ships, but did not know what was in the dust. Dkt. No. 120 at 39–40.

23 24 1 51. The occupational environment of an MM1 assigned to a Navy shipyard would 2 likely have contained nuisance dust which did not contain asbestos fibers because an MM1 would 3 typically not be working near an asbestos release point. Dkt. No. 64–65.

4 52. Respirable asbestos fibers are not visible to the naked eye. Dkt. No. 124 at 65. 5 53. Dennis Paustenbach, Ph.D., C.I.H., has over 35 years of experience in risk 6 assessment, environmental engineering, toxicology, and occupational health. Dkt. No. 124 at 8– 7 18. Dr. Paustenbach testified that scientific studies show that asbestos fibers that stick to clothing 8 do not easily release from the fabric because electrostatic force prevents easy release. Id. at 62– 9 64. 10 54. It is undisputed that potential take-home exposures to asbestos are significantly 11 lower than the primary exposure (i.e., the worker’s exposure). Dkt. No. 122 at 148–49. Dr. 12 Paustenbach presented results from a simulation he oversaw to determine quantitatively the

13 amount of dust released from clothes, using mannequins to model potential airborne concentrations 14 a spouse may encounter in the home. The data, which was published, revealed that the para- 15 occupational exposure from shaking out clothes is about one percent of the airborne concentration 16 of the exposure worker. Dkt. No. 124 at 66–67. 17 57. Dr. Paustenbach has studied bystander asbestos exposure and published his 18 findings, which enables “one to predict the concentrations with distance from the point source 19 inside a building.” Dkt. No. 124 at 66. Dr. Paustenbach’s study defined a “bystander” as an 20 individual who is between one to 30 feet away from a person working directly with an asbestos- 21 containing product. Id. at 65–66. This study revealed that at five to ten feet from the point source, 22 the asbestos concentration is down to 35 percent of the point source; at 10–30 feet from the point

23 source, the concentration is down to 10 percent; at more than 30 feet away from the point source, 24 1 the concentration is down to 1 percent; and beyond 50 or 60 feet, the asbestos concentration is 2 “usually not measurable[.]” Id. at 66. 3 58. Given H.J.’s rank and job assignments while serving at NISMF and attached to the

4 USS Sacramento, he would have likely received “extremely low or de minimis” bystander 5 exposure. Dkt. No. 124 at 150. 6 59. Plaintiff’s retained epidemiologist Nicholas Heyer, Ph.D., opined that Geraldine 7 was exposed to asbestos para-occupationally, but failed to consider H.J.’s actual assignments in 8 reaching that opinion. Dkt. No. 122 at 147–48. Instead, Dr. Heyer incorrectly assumed H.J. spent 9 155 days on the USS Sacramento performing work as a “machinist,” and he further speculated that 10 H.J. was exposed to “high levels of asbestos dusts,” and that H.J. was not provided coveralls or 11 laundry service. Id. at 132–33, 159. 12 60. Plaintiff’s retained industrial hygienist Christopher DePasquale, M.P.H., opined

13 that Geraldine was exposed to asbestos by “coming into contact with her husband’s asbestos 14 contaminated clothing, from home contamination, during the handling of [H.J.’s] asbestos 15 contaminated clothing during laundry activities,” but he failed to consider H.J.’s actual 16 assignments or the time he was away from the Shipyard. Dkt. No. 120 at 146–48. Rather, Mr. 17 DePasquale assumed para-occupational exposure because H.J. “most likely … had hands-on 18 work” with asbestos products, but regardless would have had asbestos exposure as a bystander 19 between 1970 and 1974. Id. at 148–49. 20 61. Plaintiff’s retained pathologist, Richard Kradin, M.D., opined that Geraldine would 21 have been exposed to “above background levels of asbestos capable of causing mesothelioma by 22 the laundering of her husband’s work clothes and direct contact with her husband and fibers that

23 were deposited within the household and within the family car.” Dkt. No. 122 at 60. Apparently, 24 this opinion is based on Dr. Kradin’s assumption that H.J. was exposed routinely to asbestos at 1 levels substantially above normal background. Id. at 59. Dr. Kradin failed to consider any specific 2 information regarding H.J.’s potential exposure. Indeed, Dr. Kradin did not know the difference 3 between an MM1 and an MM2 (id. at 77), failed to review H.J.’s service records (id. at 76), and

4 failed to estimate the number of potential days Geraldine could have been exposed to asbestos 5 (id.). Rather, Dr. Kradin assumed that Geraldine was exposed to asbestos para-occupationally 6 because (i) Lisa’s 2021 declaration recalled her father coming home from work 50 years ago with 7 dusty clothes, and (ii) from prior testimony of former Shipyard workers who did not know or ever 8 observe H.J. Id. at 75–76, 78, 99–100. 9 62. Dr. Paustenbach estimated Geraldine’s potential asbestos exposure through 10 handling her husband’s work clothes between March 1970 and August 1972, assuming she washed 11 his clothes every four days during that period and a 1 percent release factor. Dkt. No. 124 at 68– 12 69. Even using these inflated estimates, Geraldine’s potential para-occupational exposure would

13 have been 0.000004 fiber cc years, which is approximately background asbestos level for most 14 American cities in the 1970s. Id. In short, Geraldine would not have been exposed to asbestos 15 concentrations through handling her husband’s work clothes that increased her risk of developing 16 mesothelioma. Id. at 69–70. 17 63. Geraldine had a much greater opportunity for para-occupational asbestos exposure 18 prior to March 1970. Geraldine married H.J. in December 1963, and they lived together in 19 Charleston, South Carolina and Portsmouth, Virginia. From 1963 through March 1968, H.J. was 20 an MM2 assigned to several ships and his job duties would have involved the “removal, 21 manipulation, and reinstallation of asbestos-containing materials.” Dkt. No. 123 at 110–16; see 22 also Dkt. No. 122 at 195.

23 24 1 E. Geraldine’s Risk for Environmental Exposure. 2 64. In the 1970s, there was no reason to believe that individuals who lived near 3 shipyards were at risk of developing mesothelioma from environmental exposure. Dkt. No. 124

4 at 28. Before March 1974, there were no studies that investigated the rates of non-occupational 5 mesothelioma in individuals living in the vicinity of a shipyard in the United States (i.e., 6 neighborhood shipyard exposure). Dkt. No. 122 at 186, Dkt. No. 124 at 28–29. The scientific 7 literature that existed regarding potential neighborhood asbestos exposure often involved 8 crocidolite, concerned factory emissions with little or no pollution control devices, and/or raw 9 asbestos exhausted through stacks. Dkt. No. 124 at 28–29, 73–74. Therefore, the type of asbestos 10 used, the point source, and the controls are all distinguishable from asbestos use and handling at 11 U.S. naval shipyards. Id.; see also Dkt. No. 122 at 205–06. 12 65. Studies have shown that fiber concentrations drop very rapidly outdoors, especially

13 if it is a ground-level release. For example, Dr. Paustenbach found that outdoors, at 100 feet from 14 a point source, fiber drift results in concentrations that were 200 times lower than at the point 15 source. Dkt. No. 124 at 80–81. The farther away from the point source, the lower the 16 concentration. Id. at 81. Models commonly estimate that at one to two miles from the point source, 17 the fiber concentration would be only one ten-thousandth of the level at the point source. Id. 18 66. Geraldine’s home was roughly 1.5 miles from a potential point source—a dry dock 19 at the Shipyard. Therefore, any asbestos concentration that may have been released from that point 20 would be “immeasurably low” at her home. Dkt. No. 124 at 81. 21 67. There are several factors that influence particle movement through the air. 22 (1) Agglomeration occurs, which is when tiny particles stick together due to

23 electrostatic forces to form larger particles. Dkt. No. 124 at 81–82. 24 1 (2) Sedimentation or deposition occurs because the particles enlarge to the point that 2 they drop out of the air due to mass. Id. at 82. 3 (3) Adhesion occurs because the particles hit a wall or plant (typically, the particles do

4 not bounce, but stick). Id. 5 (4) Wet deposition occurs when it rains because the particles adhere to the rain drops. 6 Id. 7 (5) Turbulence, which is the whirling of wind, is important here because the Shipyard 8 was a “ground level” release but Geraldine’s home was roughly nine stories above the shipyard. 9 Id. Turbulence accelerates the first four factors described and increases the surface area that any 10 fugitive fibers must travel, thereby lessening fiber transport potential. Id. at 82–83. 11 68. Other factors that influence the ability of asbestos fibers to drift from a shipyard 12 into the community are the existence of a buffer zone and volume and type of asbestos from the

13 release point. Dkt. No. 124 at 30, 75. 14 69. Plaintiff’s retained meteorologist and climatologist Nicholas Bond, Ph.D., testified 15 that the wind blew in the direction of Geraldine’s home at times between 1970 and 1974. Dkt. No. 16 121 at 51–61. Dr. Bond’s analysis was limited to the direction of the “prevailing” winds. Id. at 17 50 (clarifying that Plaintiff requested that he “focus on the wind patterns and to establish if and 18 how often the residence was downstream of the shipyard”). 19 70. Dr. Bond is not an expert in fate and transport, nor did he perform a chemical fate 20 and transport analysis of the location and state of atmospheric constituent in this case. Dkt. No. 21 121 at 50. Rather, he merely focused on the wind patterns. Id. 22 71. Dr. Bond assumed that asbestos could float from the shipyard to Geraldine’s home.

23 However, Dr. Bond’s assumptions were apparently based on wind speed and his anecdotal 24 1 knowledge regarding smoke from fires, not regarding the chemical nature of asbestos specifically. 2 Dkt. No. 121 at 46–48. 3 72. Indeed, Dr. Bond did not address agglomeration, adhesion, or wind turbulence. Dr.

4 Bond failed to consider the elevation of Geraldine’s home, which was about nine stories above the 5 Shipyard. Dr. Bond did not address the point source or the buffer zone around the Shipyard that 6 Dr. Paustenbach described. Dkt. No. 124 at 75, 84–87. Dr. Bond compared forest fire smoke, 7 which releases massive quantities of particles, to asbestos fibers at the Shipyard, where any release 8 beyond the shipyard perimeter is speculative, but undoubtedly far lower. Id. at 84–85. In short, 9 Dr. Bond “made it sound like if the wind is blowing that way, fibers are going to get there[,]” but 10 he was “oblivious to everything that has to do with fiber transport.” Id. at 84. 11 73. Dr. Heyer testified that, because “all asbestos fibers” are “very small … they can 12 move very easily with the air and can travel long distances.” Dkt. No. 122 at 130. Dr. Heyer

13 opined that fibers would drift “outside of the ship” which “would increase the environmental 14 exposure of people living within the vicinity of the shipyard.” Id. at 130–31. 15 74. Dr. Heyer did not address any of the factors that scientists consider in assessing the 16 fate and transport of asbestos fibers, such as agglomeration, adhesion, or wind turbulence. Further, 17 he did not consider the point source (asbestos levels, type of release), physical buffer around the 18 Shipyard, elevation, or the climate (moisture, temperature). See, e.g., Dkt. No. 124 at 81–83, 85, 19 87–88 (Dr. Paustenbach’s testimony on those topics). 20 75. Dr. Heyer did not quantify Geraldine’s alleged environmental exposure in 21 Bremerton. Dkt. No. 122 at 151. Rather, Dr. Heyer’s opinion that Geraldine’s mesothelioma risk 22 was increased because she lived in Bremerton was based on epidemiological studies. Id. The only

23 study Dr. Heyer identified that addressed U.S. Navy shipyards and ambient asbestos exposure was 24 the 1986 Kilburn, et al. study. Kilburn et al. concluded that families residing near Long Beach 1 Shipyard in Los Angeles were at greater risk of respiratory problems from smog, and expressly 2 stated that asbestos did not explain the increased pulmonary problems. Id. at 151–54. 3 76. Mr. DePasquale opined that Geraldine “would have been exposed environmentally

4 from the release of asbestos at Puget Sound Naval Shipyard, and when winds from the shipyard 5 were blowing in the direction of their home, generally out of the east, it would have additionally 6 resulted in exposures to asbestos at her home.” Dkt. No. 120 at 132. His opinion is based on (1) 7 the vague assertion that asbestos fibers drift when released into the air (id. at 93); (2) epidemiology 8 studies that do not address U.S. shipyards (id. at 156–67); and (3) Dr. Bond’s report that the wind 9 blew, at times, in the direction of Geraldine’s home (id. at 132–33). Mr. DePasquale did not 10 consider any of the factors that scientists consider in assessing the fate and transport of asbestos 11 fibers, such as agglomeration, adhesion, and wind turbulence. Further, he did not consider the 12 point source (asbestos levels, type of release), physical buffer around the Shipyard, elevation, or

13 the climate (moisture, temperature). See generally id. at 134. 14 77. Dr. Kradin opined that the alleged environmental exposures Geraldine received 15 between March 1970 and March 1974 “were [] a substantial contributing factor in causing her 16 malignant mesothelioma[.]” Dkt. No. 122 at 63. 17 78. Dr. Kradin’s opinion relied on statements from Dr. Bond (“the meteorologist”) and 18 Dr. Heyer (“the epidemiologist”) for his belief that living in proximity to the Shipyard would have 19 exposed Geraldine to “ambient levels of asbestos that were substantially higher than normally 20 seen.” Dkt. No. 122 at 60, 88. Dr. Kradin did not perform any quantitative estimates of 21 Geraldine’s alleged environmental exposure, nor did he have any idea of Geraldine’s potential 22 asbestos level in Bremerton between March 1970 and March 1974. Id. at 89. Rather, he assumed

23 that Geraldine “would have been at increased risk because the wind was blowing at least on 24 occasion in her direction.” Id. 1 79. Dr. Kradin identified only one study to support his opinion that the alleged 2 environmental asbestos exposures Geraldine received between March 1970 and March 1974 were 3 a substantial contributing factor in causing her malignant mesothelioma. This study, Tagnon et

4 al., involved workplace exposure at a shipyard, not environmental exposure to shipyard neighbors. 5 Dkt. No. 122 at 89–92. Indeed, Dr. Kradin acknowledged that he knew of no studies associating 6 environmental asbestos exposures from naval shipyards with mesothelioma. Id. at 92. 7 80. None of Plaintiff’s experts estimated Geraldine’s potential environmental 8 exposures from the Shipyard. In contrast, Dr. Paustenbach did calculate potential environmental 9 exposure, using numbers from Carl Mangold’s 1982 study and assuming that the fibers were 10 asbestos and came from the Shipyard (which was most likely not the case, as Mr. Mangold 11 acknowledged in his study (Ex. 41 at 27)). Using this conservative data, Dr. Paustenbach estimated 12 that Geraldine’s potential asbestos exposure from the Shipyard was 0.00018 fibers per cc years,

13 which is thousands of folds below the level of crocidolite (i.e., most dangerous type of asbestos 14 and not utilized at the Shipyard) believed to cause mesothelioma. Dkt. No. 124 at 89–90; see also 15 Dkt. No. 55-2 at 95–96 (explaining the estimate calculation)). Therefore, it is implausible that 16 residing near the Shipyard for four years could have increased Geraldine’s risk of developing 17 mesothelioma. Id. 18 81. Dr. Heyer’s opinion that the Shipyard failed to follow Navy policies, and this failure 19 increased Geraldine’s chances of developing mesothelioma, is based on discretionary provisions 20 in P-5100, 5100.26, and/or Chapter 9390. For example, Dr. Heyer confirmed that his opinion was 21 based on policy provisions advising that “portable mechanical exhaust ventilation should be used 22 to remove airborne dust and exhausted into bags or suitable devices,” local shipyard commanders

23 may apply more stringent restrictions, “[a]sbestos operations should be segregated from other 24 operations,” industrial hygienists “should make frequent inspection of the Fabrication and 1 Installation sites” to check airborne contamination levels, and insulation should not be dry swept. 2 Dkt. No. 122 at 117–21. 3 82. Dr. Kradin’s opinion that exposures from the Shipyard caused Geraldine’s alleged

4 mesothelioma is based on his belief that all asbestos exposures above background contributed to 5 Geraldine’s disease: “[T]he cumulative dose is what matters with respect to the risk for developing 6 the disease. So all exposures above background would have to be counted.” Dkt. No. 122 at 60. 7 F. Geraldine’s Additional Medical Background 8 83. In approximately 2010, Geraldine underwent therapeutic radiation treatment for 9 breast cancer. Ex. 607 at 42. 10 84. On February 21, 2020, Geraldine was diagnosed with pleural mesothelioma. Ex. 11 607 at 32–33. 12 IV. CONCLUSIONS OF LAW

13 A. Legal Standards

14 1. Under the FTCA, the law of the state where the tort allegedly occurred controls 15 issues of liability. Pacheco v. United States, 21 F.4th 1183, 1187 (9th Cir. 2022). 16 2. To prevail on a negligence claim under Washington law, a plaintiff “must show (1) 17 the existence of a duty to the plaintiff, (2) a breach of that duty, (3) a resulting injury, and (4) the 18 breach as the proximate cause of the injury.” Turner v. Wash. State Dep’t of Soc. & Health Servs., 19 493 P.3d 117, 124 (Wash. 2021) (quoting Ehrhart v. King County, 460 P.3d 612, 617 (Wash. 20 2020)). 21 3. Under Washington law, “the existence of a fact or facts cannot rest in guess, 22 speculation, or conjecture.” Gardner v. Seymour, 180 P.2d 564, 569 (Wash. 1947) (quoting Home 23 Ins. Co. v. N. Pac. R. Co., 150 P.2d 507, 509 (Wash. 1943)); see also British Airways Bd. v. Boeing 24 1 Co., 585 F.2d 946, 952 (9th Cir. 1978) (explaining that a jury is permitted only to draw reasonable 2 inferences and “may not resort to speculation”), cert. denied, 440 U.S. 981 (1979). 3 4. Washington law also provides that “where, on the evidence, under one theory of

4 the case plaintiff would be liable and under another theory not liable, plaintiffs’ burden of proof 5 has not been met.” Baker v. United States, 417 F. Supp. 471, 487 (W.D. Wash. 1975). Therefore, 6 proof of negligence and proximate cause must be based on “[r]easonable probability, not mere 7 possibility[.]” Id. 8 5. Under the FTCA, the United States cannot be strictly liable for asbestos exposure. 9 See Laird v. Nelms, 406 U.S. 797, 799–802 (1972). Further, under the FTCA, the United States 10 can be liable only to the extent it has waived its sovereign immunity. See, e.g., Esquivel v. United 11 States, 21 F.4th 565, 572–73 (9th Cir. 2021). Therefore, it is not enough for Plaintiff to show that 12 Geraldine was exposed to asbestos from the Shipyard. Rather, Plaintiff must establish that

13 Geraldine was exposed to asbestos that resulted from a federal employee’s negligent violation of 14 a mandatory and specific directive. In other words, to be actionable in this FTCA case, Plaintiff 15 must establish Geraldine was sufficiently exposed to asbestos from negligent, non-discretionary 16 government conduct shown to be the proximate cause of her mesothelioma. 17 6. The “peculiar nature of asbestos products and the development of disease due to 18 exposure to such products” creates difficulties in establishing the precise party or exposures that 19 caused the harm. Lockwood v. AC & S, Inc., 744 P.2d 605, 613 (Wash. 1987). To prove causation 20 in an asbestos case, therefore, Washington courts typically apply the “substantial factor” test to 21 determine proximate cause. See Jack v. Borg-Warner Morse Tec, LLC, C17-0537JLR, 2018 WL 22 4409800, at *12 (W.D. Wash. Sept. 17, 2018) (citing Mavroudis v. Pittsburg-Corning Corp., 935

23 P.2d 684, 687–89 (Wash. Ct. App. 1997)), aff’d sub nom. Jack v. DCo, LLC, 837 F. App’x 421 24 (9th Cir. 2021). 1 7. In asbestos cases, to satisfy the substantial factor test, the plaintiff must demonstrate 2 “a high enough level of exposure that an inference that the asbestos was a substantial factor in the 3 injury is more than conjectural.” Stephens v. Union Pac. R.R. Co., 935 F.3d 852, 855–56 (9th Cir.

4 2019) (quoting McIndoe v. Huntington Ingalls Inc., 817 F.3d 1170, 1176 (9th Cir. 2016)). 5 8. A plaintiff may establish exposure to asbestos from a defendant’s conduct through 6 direct or circumstantial evidence. Morgan v. Aurora Pump Co., 248 P.3d 1052, 1056 (Wash. Ct. 7 App. 2011). “However, ‘[w]hen reliance is placed upon [circumstantial] evidence, there must be 8 reasonable inferences to establish the fact to be proved.’” Id. (quoting Arnold v. Sanstol, 260 P.2d 9 327, 329 (Wash. 1953)); see also Sanchez v. Haddix, 627 P.2d 1312, 1315 (Wash. 1981) (“Where 10 causation is based on circumstantial evidence, the factual determination may not rest upon 11 conjecture[.]”). 12 9. “Ultimately, the sufficiency of the evidence of causation will depend on the unique

13 circumstances of each case.” Lockwood, 744 P.2d at 613 (identifying factors, in a product liability 14 occupational exposure case, for the trial court to consider when determining whether there is 15 sufficient evidence to take the case to the jury). 16 10. Here, Plaintiff alleges that Geraldine was exposed to asbestos from the Shipyard 17 because Navy personnel did not consistently follow Navy asbestos workplace regulations. Dkt. 18 No. 1 ¶ 105. 19 11. To establish causation, Plaintiff must proffer non-speculative evidence that 20 Geraldine was injuriously exposed to asbestos from the Shipyard’s negligent violation of 21 mandatory and specific directives. See Hartley v. Washington, 698 P.2d 77, 82 (Wash. 1985) (“the 22 breach of duty must also be shown to be the proximate cause”); see also Andrews v. United States,

23 121 F.3d 1430, 1441 (11th Cir. 1997) (finding that, although the Navy violated a mandatory duty 24 to segregate waste, plaintiffs failed to show causal nexus under state law between the Navy’s 1 violation of this duty and the alleged contamination); Hall v. United States, 233 F.R.D. 591, 597 2 (D. Nev. 2005) (holding that the FBI’s failure to follow mandatory rule to notify headquarters and 3 the U.S. Attorney of illegal conduct was not actionable without a viable allegation that this failure

4 caused plaintiffs’ Ponzi scheme losses). 5 B. Assuming Without Deciding that (1) the Government Owed a Duty to Protect Geraldine from Asbestos Exposure, (2) the Government Did Not Comply With All 6 Mandatory Asbestos Control Policies, and (3) Geraldine Had Mesothelioma, Plaintiff’s Claims Nonetheless Fail for Lack of Proximate Cause. 7 1. Plaintiff Did Not Show by a Preponderance of the Evidence That Geraldine 8 Experienced More than de Minimus Para-Occupational Asbestos Exposure Resulting from Actionable Navy Conduct. 9 12. Plaintiff’s experts speculated that H.J. received substantial asbestos exposure 10 because he worked as a machinist at the NISMF and/or on the USS Sacramento during overhaul, 11 and that this presumed exposure was carried home to Geraldine because of reports he had dusty, 12 dirty clothes. 13 13. The preponderance of the evidence shows that H.J. would not have performed rip- 14 out as a MM1, nor would his assignments at the Shipyard have entailed work with, or near, 15 asbestos-containing material. Because the evidence shows that H.J. did not perform rip-out, the 16 Navy was not required to provide him with coveralls. And because H.J. did not work with or near 17 asbestos-containing materials, any failure of Navy personnel to comply with asbestos-containment 18 procedures would not have increased the number of asbestos fibers on H.J.’s clothing. 19 14. Plaintiff’s experts assumed that H.J. brought asbestos home on his clothing because 20 more than 50 years later, his daughter recalled his dusty, dirty clothes. It is speculative to assume 21 that the Government failed to provide H.J. with coveralls or that his dusty clothing contained 22 asbestos. That H.J. arrived home from work at a complex construction site with dirty or dusty 23 clothes does not lead to a reasonable inference that the dirt or dust contained asbestos. 24 1 15. Plaintiff argues that even if H.J. was not required to wear coveralls, discretionary 2 immunity does not bar her claim because he was exposed to asbestos from other purported 3 workplace rule violations, including the failure to use asbestos containment areas or follow proper

4 cleanup procedures. 5 16. Even if, as Plaintiff argues, the Government failed to follow procedures for 6 containing or cleaning up asbestos products, no evidence was presented suggesting that this failure 7 increased Geraldine’s exposure. Plaintiff presented no evidence that H.J. was aboard any ship 8 when asbestos work was performed, let alone that he was ever close enough to that work that 9 asbestos fibers would have adhered to his clothing. Without such evidence, Plaintiff failed to show 10 that if the Government’s procedures had been strictly followed, H.J.’s exposure (and therefore 11 Geraldine’s) would have been significantly reduced. Indeed, the evidence suggests otherwise. 12 Therefore, it is speculative to assume that H.J. received any meaningful exposure when he was

13 working at Bremerton, or that, by extension, Geraldine was exposed by laundering his clothing. 14 17. Moreover, under Washington law, there must be specific evidence showing that 15 Geraldine was exposed to asbestos as the result of the Government’s actionable conduct. Plaintiff 16 did not meet this burden of proof by presenting general evidence that there was asbestos work 17 performed at H.J.’s worksite or expert testimony that H.J. would have been exposed to asbestos 18 when present aboard ships. See Klopman-Baerselman v. Air & Liquid Sys. Corp., No. 3:18-cv- 19 05536-RJB, 2019 WL 6619821, at *3–4 (W.D. Wash. Dec. 5, 2019) (applying the Lockwood 20 factors and granting summary judgment, finding plaintiff’s evidence that defendant sold asbestos- 21 containing products to the Navy, and plaintiff’s expert opinion testimony that the ships on which 22 decedent worked would have contained asbestos and he would have been exposed to asbestos was

23 insufficient). 24 1 18. Even if there had been evidence of actionable para-occupational exposure during 2 the few months H.J. worked on a ship at the Shipyard, the preponderance of the evidence shows 3 that Geraldine was likely exposed to significantly more asbestos para-occupationally before March

4 1970 (which is not actionable here) and that Geraldine underwent radiation treatment in 2010, 5 which can cause mesothelioma. See Dkt. No. 122 at 99, 166, 181–83; Dkt. No. 123 at 15–16; 6 Dkt. No. 125 at 20, 35–37, 44. Such evidence is relevant under Washington law in determining 7 whether there is sufficient evidence to establish causation in an asbestos case. See Klopman, 2019 8 WL 6619821, at *3 (recognizing that there may be many possible sources of asbestos that could 9 have caused decedent’s death in granting judgment for the defendant). Given Geraldine’s, at most, 10 de minimis actionable para-occupational asbestos exposure, and the other far more significant 11 contributing factors to mesothelioma she sustained, Plaintiff failed to show that any actionable 12 para-occupational exposure between March 1970 and August 1972 was a substantial contributing

13 factor in increasing Geraldine’s risk of developing mesothelioma. 14 19. For these reasons, Plaintiff failed to meet her burden to prove that Geraldine was 15 exposed to actionable asbestos para-occupationally, during the five to six months her husband 16 worked at the Shipyard between March 1970 and August 1972, that was capable of contributing 17 to the development of mesothelioma. Consequently, the Court enters judgment for the United 18 States as to Plaintiff’s para-occupational exposure claim. 19 2. Plaintiff Did Not Show by a Preponderance of the Evidence That Geraldine Experienced More than de Minimus Environmental Asbestos Exposure Resulting from 20 Actionable Navy Conduct.

21 20. There is no evidence that any actionable source of asbestos could have reached 22 Geraldine’s home at 3733 D Street, in Bremerton. 23 21. Plaintiff failed to provide any scientifically supported chemical fate and transport 24 analysis for asbestos fibers to support her claim for environmental exposure. There is evidence 1 that Geraldine’s residence was, at times, downwind from the Shipyard. There is no evidence, 2 however, that asbestos fibers could have traveled to Geraldine’s residence in light of the chemical 3 structure and behavior of asbestos, the impact of wind turbulence and wind strength on asbestos

4 movement, and the local terrain and elevation between the Shipyard and her home. Given the 5 failure to consider such factors, Plaintiff’s experts’ opinions that any measurable level of asbestos 6 reached Geraldine’s home is unsupported by reliable methodology and is therefore speculative. 7 22. Plaintiff’s experts failed to consider what asbestos fibers, if any, could have been 8 released from actionable Shipyard conduct, let alone whether any such exposure could be a 9 significant factor in the development of mesothelioma. 10 23. Even if there were evidence that actionable asbestos traveled to Geraldine’s 11 residence, the preponderance of the evidence does not show that any such exposure was more than 12 de minimus. Instead, the preponderance of the evidence shows that Geraldine was potentially

13 exposed to significantly more asbestos para-occupationally before March 1970 (which is not 14 actionable) and that Geraldine underwent radiation treatment in 2010 (which is an undisputed 15 cause of mesothelioma). Such evidence is relevant under Washington law in determining whether 16 there is sufficient evidence to establish causation in an asbestos case. See Klopman, 2019 WL 17 6619821, at *3. Given the relatively short period that Geraldine lived in Bremerton and the other 18 far more significant contributing factors to mesothelioma that she sustained, Plaintiff failed to 19 show that any actionable environmental exposure between March 1970 and March 1974 20 significantly increased Geraldine’s risk for developing mesothelioma. 21 24. For these reasons, Plaintiff failed to meet her burden to prove that Geraldine was 22 exposed to actionable asbestos from the ambient Bremerton air that was capable of contributing to

23 the development of mesothelioma. 24 1 3. Plaintiff Did Not Meet Her Burden to Prove That Actionable Asbestos Exposures Were, in Fact, a Substantial Causative Factor to Geraldine’s Disease. 2 25. A plaintiff must establish that the asbestos exposure did in fact result in the injury 3 (“specific causation”). See Henricksen v. ConocoPhillips Co., 605 F. Supp. 2d 1142, 1155 (E.D. 4 Wash. 2009) (citing In re Hanford Nuclear Reservation Litig., 292 F.3d 1124, 1133 (9th Cir. 5 2002)). 6 26. To establish specific causation, Plaintiff must offer non-speculative evidence that 7 Geraldine was exposed to a dose of asbestos from actionable conduct that was a substantial 8 contributing factor to her alleged mesothelioma. See Klopman, 2019 WL 6619821, at *3–4; see 9 also Stephens, 935 F.3d at 856 (stating that expert’s opinions must rest on facts or data, not 10 assumptions and speculation). 11 27. Plaintiff’s specific causation expert, Dr. Kradin, assumed that Geraldine was 12 exposed to asbestos above a threshold level because her husband worked as a Machinist’s Mate 13 and she resided near the Shipyard. Dr. Kradin did not characterize or estimate Geraldine’s actual 14 exposures between 1970 and 1974, let alone her exposures from actionable conduct. 15 28. Although he recognized that radiation therapy contributed to Geraldine’s 16 mesothelioma, Dr. Kradin did not consider the extent to which radiation contributed to her disease. 17 29. Nonetheless, Dr. Kradin opined that Geraldine’s asbestos exposures were a 18 substantial contributing factor in causing her mesothelioma because “she would have been exposed 19 to above background levels of asbestos capable of causing mesothelioma.” Dkt. No. 122 at 60– 20 62. Dr. Kradin further testified that Geraldine’s pre-1970 asbestos exposures did not matter to his 21 opinion because “the cumulative dose is what matters with respect to the risk for developing the 22 disease. So all exposures above background would have to be counted.” Id. at 60–61. 23 24 1 30. Dr. Kradin’s specific causation opinion that every exposure above the background 2 level was a substantial contributing factor to Geraldine’s “cumulative dose” of asbestos is 3 unreliable because it lacks sufficient factual support and is not grounded in data or reliable

4 methodology. See McIndoe, 817 F.3d at 1177 (finding expert’s testimony that every asbestos 5 exposure above a threshold level was a substantial factor in the development of mesothelioma was 6 unreliable because the expert “did not speak to the severity of [plaintiff’s] exposure” to asbestos 7 or “make distinctions between the overall dose of asbestos … and that portion of such exposure 8 which could be attributed to the shipbuilders’ asbestos-containing materials”); Barabin v. Scapa 9 Dryer Fabrics, Inc., No. C07-1454JLR, 2018 WL 840147, at *11–13 (W.D. Wash. Feb. 12, 2018) 10 (finding the cumulative exposure theory that “every exposure to asbestos above a threshold level 11 is necessarily a substantial factor” in causing mesothelioma “lacked sufficient support in facts and 12 data” and was therefore unreliable under Federal Rule of Evidence 702 and Daubert v. Merrell

13 Dow Pharm., Inc., 509 U.S. 579, 592–94 (1993)). 14 31. The Court gives Dr. Kradin’s testimony regarding specific causation no weight 15 because it was based on conjecture that Geraldine developed mesothelioma from some unspecified 16 or assumed cumulative dose of above-background asbestos exposures. As explained above, 17 Plaintiff did not show by a preponderance of the evidence that Geraldine experienced more than a 18 de minimus asbestos exposure from actionable Shipyard conduct. Further, Dr. Kradin failed to 19 address the contribution that radiation therapy to the precise location of Geraldine’s chest tumor 20 had on its development. 21 32. For the foregoing reasons, the Court finds that Plaintiff failed to meet her burden to 22 prove Geraldine’s asbestos exposures from actionable Navy conduct was a substantial factor in

23 her mesothelioma. The Court will enter judgment in favor of the Government against Plaintiff on 24 her remaining claims. 1 33. To the extent that any of the foregoing Findings of Fact are deemed to be 2 conclusions of law, they are incorporated into these Conclusions of Law. 3 V. CONCLUSION

4 For these reasons, the Court enters judgment in favor of the United States. 5 DATED this 27th day of December, 2024. 6 A 7 Kymberly K. Evanson 8 United States District Judge

10 11 12 13 14 15 16 17 18 19 20 21 22 23 24