UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

SHERRI L. DEEM, individually and as No. 20-35165 Personal Representative for the estate of Thomas A. Deem, D.C. No. deceased, 3:17-cv-05965- Plaintiff-Appellant, BHS

v. OPINION

THE WILLIAM POWELL COMPANY; JOHN CRANE, INC.; CROSBY VALVE, LLC; INGERSOLL-RAND COMPANY, Defendants-Appellees.

Appeal from the United States District Court for the Western District of Washington Benjamin H. Settle, District Judge, Presiding

Argued and Submitted September 2, 2021 Seattle, Washington

Filed April 29, 2022

Before: M. Margaret McKeown and Ronald M. Gould, Circuit Judges, and Jed S. Rakoff, * District Judge.

Opinion by Judge Gould

* The Honorable Jed S. Rakoff, United States District Judge for the Southern District of New York, sitting by designation. 2 DEEM V. THE WILLIAM POWELL CO.

SUMMARY **

Admiralty

Reversing the district court’s dismissal of a wrongful death claim under admiralty jurisdiction, the panel held that a wrongful death claim in admiralty can only accrue on or after the death of the seaman, and not before.

Thomas Deem’s work as an outside machinist onboard ships at Puget Sound Naval Shipyard included removing and installing piping insulation, gaskets, and other parts that may have contained asbestos in various compartments throughout the ships. He was diagnosed with mesothelioma on February 20, 2015, and he died on July 3, 2015. His wife, Sherri Deem, filed suit in federal court on June 28, 2018, seeking damages under a wrongful death theory from entities who manufactured, sold, and distributed asbestos-containing products to which Thomas Deem could have been exposed.

Applying federal law, and distinguishing wrongful death claims from survival statutes permitting personal injury claims of an injured individual after death, the panel held that a wrongful death claim cannot arise or accrue before death even if the cause of death is anticipated. Thus, the accrual of the three-year statute of limitations for maritime torts, 46 U.S.C. § 30106, began to run on the date of death of Thomas Deem, and not on the date of discovery of the injury or illness that ultimately resulted in his death.

** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. DEEM V. THE WILLIAM POWELL CO. 3

The panel remanded to the district court for reconsideration of Sherri Deem’s claims in light of the panel’s holding that the statute of limitations began to accrue on the date of Thomas Deem’s alleged wrongful death, and not before that death.

COUNSEL Lisa W. Shirley (argued) and Ka’Leya Q. Hardin, Dean Omar Branham Shirley LLP, Dallas, Texas; Thomas J. Breen, Lucas Garrett, and Elizabeth McLafferty, Schroeter Goldmark & Bender, Seattle, Washington; for Plaintiff- Appellant. Brian J. Schneider (argued), Hawkins Parnell & Young LLP, Chicago, Illinois; Ronald C. Gardner, Gardner Tabolsi & Mordehkov PLLC, Seattle, Washington; James D. Hicks, Foley & Mansfield PLLP, Seattle, Washington; for Defendants-Appellees. 4 DEEM V. THE WILLIAM POWELL CO.

OPINION GOULD, Circuit Judge:

We must decide whether a wrongful death claim under admiralty jurisdiction first accrues on or after the date of the death of a seaman, or whether it accrues when the seaman first learned of his illness or injury. For the reasons that follow, we hold that a wrongful death claim in admiralty can only accrue on or after death of the seaman, and not before then. 1