851 F2d 361 Simon v. Celotex Corporation a Plc Jw Ja

851 F.2d 361

Unpublished Disposition

Emelie D. SIMON, Personal Representative of the Estate of
Howard R. Simon, Deceased, Plaintiff-Appellant,
The CELOTEX CORPORATION, a Delaware corporation; Jim Walter
Corporation, a Florida corporation; Eagle-Picher
Industries, Inc., an Ohio corporation; Fibreboard Corp., a
Delaware corporation; A Delaware Corporation, a Delaware
corporation; Keene Corporation, a New York corporation;
Nicolet, Inc., a Delaware corporation; Owen-Illinois, Inc.,
an Ohio corporation; Pittsburgh- Corning Corporation, a
Pennsylvania corporation; Raymark Industries, Inc., a
Connecticut corporation; Turner-Newall, PLC, a British
corporation; J.W. Roberts Limited; J.A. Bartells Company,
a Washington corporation; Johns- Manville Corporation, a
New York corporation; Johns-Manville Sales Corporation, a
Delaware corporation; Unarco Industries, Inc., a Delaware
corporation; Amatex Corporation, a Pennsylvania
corporation; Forty-Eight Insulations, Inc., an Illinois
corporation, Defendants-Appellees.

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

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Nos. 86-4029, 86-4152.


United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 2, 1988.
Decided June 22, 1988.


Before WALLACE and REINHARDT, Circuit Judges, and CHARLES L. HARDY,* District Judge.



Emelie D. Simon, as the personal representative of her husband's estate, appeals from a summary judgment entered by the district court in favor of numerous asbestos manufacturers and distributors. Simon contends (1) that the district court erred by applying an incorrect statute of limitations to her wrongful death action, and (2) that her action is not time-barred, even under the incorrect statute applied by the district court. The district court had jurisdiction pursuant to 28 U.S.C. Sec. 1332(a)(1), and we have jurisdiction under 28 U.S.C. Sec. 1291. We affirm.


The district court's interpretation of substantive state law is reviewed de novo. In re McLinn, 739 F.2d 1395, 1397 (9th Cir.1984) (en banc).


In 1983, Oregon adopted a special statute of limitations for asbestos-related products liability actions. The statute provides: "A product liability civil action for damages resulting from asbestos-related disease shall be commenced not later than two years after the date on which the plaintiff first discovered, or in the exercise of reasonable care should have discovered, the disease and the cause thereof." Or.Rev.Stat. Sec. 30.907 (1987).


Simon contends the Oregon wrongful death statute of limitations applies, rather than the asbestos statute of limitations. The wrongful death statute provides:

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When the death of a person is caused by the wrongful act or omission of another, the personal representative of the decedent, for the benefit of the decedent's surviving spouse, surviving children, surviving parents and other individuals, if any, who under the law of intestate succession of the state of the decedent's domicile would be entitled to inherit the personal property of the decedent, may maintain an action against the wrongdoer, if the decedent might have maintained an action, had the decendent [sic] lived, against the wrongdoer for an injury done by the same act or omission. The action shall be commenced within three years after the occurrence of the injury causing the death of the decedent.


Or.Rev.Stat. Sec. 30.020(1) (1987). Simon argues that because the asbestos statute does not mention death specifically, it is inapplicable to death actions, and therefore, the wrongful death statute applies.


We are not persuaded. Oregon has defined "product liability civil action" for the purpose of the asbestos limitations statute as:


[A] civil action brought against a manufacturer, distributor, seller or lessor of a product for damages for personal injury, death or property damage arising out of:


(1) Any design, inspection, testing, manufacturing or other defect in a product;


(2) Any failure to warn regarding a product; or


(3) Any failure to properly instruct in the use of a product.


Or.Rev.Stat. Sec. 30.900 (emphasis added). Because Simon is bringing a civil action for death based on a defective product that allegedly caused an asbestos-related disease, the two-year asbestos limitation applies to her action.


It is true that the three-year wrongful death statute also applies because Simon is suing for the wrongful acts of the defendants that allegedly caused her husband's death. Because the two sections describe different limitation periods, a statutory inconsistency exists. In such cases, the conflict is resolved in favor of the more specific provision. See Or.Rev.Stat. Sec. 174.020 ("In the construction of a statute the intention of the legislature is to be pursued if possible; and when a general and particular provision are inconsistent, the latter is paramount to the former. So a particular intent shall control a general one that is inconsistent with it."); accord Coos County v. Department of Revenue, 299 Or. 711, 718, 705 P.2d 731, 735 (1985) (in banc); Davis v. Wasco Intermediate Education District, 286 Or. 261, 272, 593 P.2d 1152, 1158 (1979). Because the asbestos limitation applies specifically to asbestos-related death actions, it supersedes the wrongful death limitation in those cases. Therefore, the two-year asbestos statute of limitations applies to Simon's action, rather than the general three-year wrongful death statute of limitations. The complaint was filed in excess of the two-year allotted time.


Simon contends that even if the two-year statute of limitations applies, her action is not barred because, as the personal representative, she could not have "discovered" the cause of her husband's disease until she was appointed representative of the estate, regardless of the date she obtained causal information as an individual. Simon did not raise the argument in the district court.


Generally we will not consider an issue raised for the first time on appeal. Romain v. Shear, 799 F.2d 1416, 1419 (9th Cir.1986) (per curiam), cert. denied, 107 S.Ct. 2183 (1987). There are, however, three exceptions:


(1) in an "exceptional" case when review is necessary to prevent a miscarriage of justice or to preserve the integrity of the judicial process, (2) when a new issue arises while the appeal is pending because of a change in law, or (3) when the issue is purely one of law and the necessary facts are fully developed.


When one of the exceptions is applicable, we have discretion to address the issue. Bolker v. Commissioner, 760 F.2d 1039, 1042 (9th Cir.1985).


Only the third exception is conceivably applicable in this appeal. Whether it is or not, we decline to consider the newly raised issue. Complex legal issues are presented, including the question of how the "necessary facts are fully developed" principle applies on review of a summary judgment motion. That aspect of the problem has still not been adequately developed by the parties. Under all the circumstances, we conclude that in this case we should not exercise our discretion to review an issue that was not raised in the district court.




Honorable Charles L. Hardy, United States District Judge, District of Arizona, sitting by designation