Kuch

MEMORANDUM *

Plaintiffs Michael and Tessa Palmquist and the Estate and heirs of Louis Roger Sheffels appeal from a grant of summary judgment in favor of Defendants the Boe *666 ing Company and the United States. We reverse and remand for further proceedings.

1. The district court properly declined to consider Michael Palmquist’s hypnosis-refreshed recollections in opposition to summary judgment. See United States v. Sioux, 362 F.3d 1241 , 1244 n. 5 (9th Cir.2004) (holding that de novo review applies to the district court’s interpretation of the Federal Rules of Evidence). In this civil action, Washington’s law regarding the competency of a witness applies. Fed. R.Evid. 601. That is so because state law “supplies the rule of decision,” id., under the Federal Tort Claims Act, 28 U.S.C. § 1346 (b), and under Plaintiffs’ product liability claims, Wash. Rev.Code § 7.72.030(1). See Trevino v. United States, 804 F.2d 1512, 1516 (9th Cir.1986) (applying Washington law on the competency of an expert witness to testify). Under Washington law, a witness is incompetent to testify concerning post-hypnotic recollections. State v. Martin, 101 Wash.2d 713 , 684 P.2d 651, 656 (1984).

2. The…