FILED
NOT FOR PUBLICATION
FEB 05 2019
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
A.H. LUNDBERG ASSOCIATES, INC. a No. 17-35304
Washington corporation and LUNDBERG,
LLC, D.C. No. 2:14-cv-01160-JLR
Plaintiffs-Appellees,
MEMORANDUM*
v.
TSI, INC, a Washington corporation,
Defendant,
v.
RICHARD J. MARTIN and MARTIN
THERMAL ENGINEERING, INC.,
Movants - Appellants.
Appeal from the United States District Court
for the Western District of Washington
James L. Robart, Judge, Presiding
Argued and Submitted June 11, 2018
Seattle, Washington
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Before: D.W. NELSON and WATFORD, Circuit Judges, and PREGERSON,**
District Judge.
Expert witness Dr. Richard J. Martin (“Martin”) and Martin Thermal
Engineering, Inc. appeal the district court’s imposition of sanctions, including the
striking of Martin’s trial testimony, personal monetary sanctions, and a finding of
misconduct. We have jurisdiction under 28 U.S.C. § 1291 over an order imposing
sanctions upon a nonparty, and AFFIRM in part and REVERSE in part.
1. We review a district court’s exercise of its inherent power to impose
sanctions for abuse of discretion. Lahiri v. Universal Music & Video Distribution
Corp., 606 F.3d 1216, 1218 (9th Cir. 2010); Fink v. Gomez, 239 F.3d 989, 994 (9th
Cir. 2001). A district court abuses its discretion if it bases its decision “on an
erroneous view of the law or on a clearly erroneous assessment of the evidence.”
Holgate v. Baldwin, 425 F.3d 671, 675 (9th Cir. 2005). We review a district
court’s interpretation of the Federal Rules of Civil Procedure de novo. Republic of
Ecuador v. Mackay, 742 F.3d 860, 864 (9th Cir. 2014). Federal Rule of Civil
Procedure 26(a)(2)(B) unambiguously requires an expert witness to disclose the
“basis and reasons” for opinions he or she will express and the “facts or data”
supporting those opinions. Fed. R. Civ. P. 26(a)(2)(B)(I), (ii). Insofar as the
**
The Honorable Dean D. Pregerson, United States District Judge for
the Central District of California, sitting by designation.
2
district court interpreted Rule 26 to require the disclosure of all communications
with subcontractors, regardless whether those communications had any influence
on Martin’s opinions or testimony, that interpretation was erroneous.
2. Martin did not engage in bad faith conduct or conduct “tantamount to bad
faith.” Cf. B.K.B. v. Maui Police Dep't, 276 F.3d 1091, 1108 (9th Cir. 2002).
There was no evidence before the district court that Martin omitted any facts, data,
or reasons underpinning his expert opinions. The exclusion of certain
subcontractor information from Martin’s otherwise exhaustive list of disclosed
materials was not conduct tantamount to bad faith where the omitted information
was irrelevant. Nor was Martin’s testimony inconsistent. Martin explained that he
did not intentionally omit relevant information, but instead followed his usual
practice of omitting information that he did not consider to be important, including
the names of subcontractors. Martin’s admission of unintentional conduct referred
not to his conscious decision to omit subcontractor information, but rather to his
potentially erroneous identification of certain relevant information as immaterial.1
The district court erroneously assessed Martin’s testimony, and abused its
1
As discussed above, Martin’s identification of the subcontractor
information at issue as irrelevant was consistent with Rule 26.
3
discretion in determining that Martin engaged in bad faith conduct or conduct
tantamount to bad faith.
Accordingly, the monetary sanctions and finding of misconduct against
Martin are VACATED.
3. Martin lacks standing to appeal the striking of his testimony. The district
court’s written order distinguished the personal sanctions against Martin from the
striking of his testimony. Although some courts have found that findings of
misconduct or explicit reprimands can constitute appealable sanctions, we are
aware of no authority for the proposition that the striking of Martin’s testimony,
which itself had little impact on Martin, constitutes a cognizable injury sufficient to
confer appellate standing. See, e.g., Lynn v. Gateway Unified Sch. Dist., 771 F.3d
1135, 1140 (9th Cir. 2014); cf. United States v. Talao, 222 F.3d 1133, 1138 (9th
Cir. 2000).
AFFIRMED in part, REVERSED in part, VACATED in part.
4