FILED
NOT FOR PUBLICATION DEC 28 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S . CO U RT OF AP PE A LS
FOR THE NINTH CIRCUIT
DAVID ROBERTS, No. 10-16583
Plaintiff - Appellant, D.C. No. 2:08-cv-00236-PMP-
LRL
v.
ALBERTSON'S LLC; SAMSUNG MEMORANDUM *
AMERICA, INC.,
Defendants - Appellees.
Appeal from the United States District Court
for the District of Nevada
Philip M. Pro, District Judge, Presiding
Argued and Submitted September 14, 2011
San Francisco, California
Before: THOMAS and N.R. SMITH, Circuit Judges, and OLIVER, Chief District
Judge.**
David Roberts suffered a stroµe after purchasing a home blood pressure
monitor distributed by Samsung America, Inc. and sold by Albertson's LLC.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Solomon Oliver, Jr., Chief District Judge for the U.S.
District Court for the Northern District of Ohio, sitting by designation.
Roberts filed a negligence and strict products liability action against Samsung and
Albertson's (Defendants), alleging the monitor gave him inaccurately low blood
pressure readings, thus prompting him to stop taµing his prescribed blood pressure
medication. The district court granted Defendants' motion for summary judgment,
holding that Roberts had not offered evidence that the monitor was defective or
that it caused his stroµe. We affirm the district court's decision.
1. 'Before ordering summary judgment in a case, a district court must . . .
rule on evidentiary objections that are material to its ruling.' Norse v. City of
Santa Cruz, 629 F.3d 966, 973 (9th Cir. 2010). An evidentiary objection is
material to the district court's ruling if the court considered the evidence that was
the subject of the objection. See id. Here, Roberts objected to the admissibility of
Defendants' expert report. The court did not rule on the objections to the report.
However, Roberts's objections to the report were not material to the district court's
ruling, because the court did not consider the report. The court's summary
judgment order did not mention the report or the assertions contained in the expert
report as a basis for its decision. Thus, the district court did not err by not
addressing the admissibility of the report.
2. To establish a strict products liability defect claim or failure to warn
claim in Nevada, a plaintiff must show '(1) the product had a defect which
2
rendered it unreasonably dangerous, (2) the defect existed at the time the product
left the manufacturer, and (3) the defect caused the plaintiff's injury.' Rivera v.
Philip Morris, Inc., 209 P.3d 271, 275 (Nev. 2009) (quoting Fyssaµis v. Knight
Equip. Corp., 826 P.2d 570, 571 (Nev. 1992)) (internal quotation marµs omitted).
A. The district court found that Roberts did not offer evidence that the
monitor had a defect because he had 'presented no expert testimony
establishing . . . that the blood pressure monitor was defective.' However,
Nevada's courts have not expressly stated that a plaintiff must present expert
testimony to establish a defect. We 'may affirm a district court's judgment on any
ground supported by the record, whether or not the decision of the district court
relied on the same grounds or reasoning' adopted by this court. Atel Fin. Corp. v.
Ïuaµer Coal Co., 321 F.3d 924, 926 (9th Cir. 2003). On this record, the district
court did not err when it determined that Roberts had not offered evidence that the
monitor was defective.
Roberts presented only circumstantial evidence that the monitor was
defective. Nevada courts have never directly held that circumstantial evidence is
sufficient to prove a defect, yet some Nevada cases have relied on circumstantial
evidence to establish the existence of a defect. See Van Duzer v. Shoshone Coca
Cola Bottling Co., 741 P.2d 811, 812-14 (Nev. 1987) (finding that a bottle was
3
unreasonably dangerous and defective based on supermarµet customer's
testimony); Stacµiewicz v. Nissan Motor Corp. in U.S.A., 686 P.2d 925, 928 (Nev.
1984) (holding that driver's and witnesses' testimony about car steering
malfunction could be proof of defect without establishing the mechanical cause of
the malfunction).
In this case, even if circumstantial evidence may be used to prove a defect,
Roberts nonetheless did not offer sufficient circumstantial evidence to establish
that this monitor was defective. Although Roberts noticed a discrepancy between
the readings given by his monitor and those readings given by his doctor's
equipment (while in his doctor's office on one occasion), that single discrepancy
does not establish that the monitor gave inaccurately low readings. The monitor's
instructions stated that occasional high or low readings did not necessarily mean
that the monitor was malfunctioning. Further, while Roberts argues that the
monitor subsequently gave him normal or below normal readings, Roberts
presented no evidence demonstrating that fact.
B. The district court also found that Roberts failed to offer evidence of
causation, because he did not produce 'medical expert testimony opining to a
reasonable degree of medical certainty that the allegedly defective product caused
the plaintiff's injury.' However, to prove proximate cause in a strict products
4
liability action in Nevada, 'the plaintiff must show that the design defect in the
product was a substantial factor in causing his injury.' Price v. Blaine Kern
Artista, Inc., 893 P.2d 367, 370 (Nev. 1995).
Again, we may affirm the district court's judgment on a different ground, if
that different ground is supported by the record. Atel Fin. Corp., 321 F.3d at 926.
To evidence a 'substantial factor' for proximate cause, we must focus on the
foreseeability of the nature and extent of the injury the plaintiff claims was caused
by the defect. See Price, 893 P.2d at 371. As noted above, Roberts did not offer
sufficient evidence of a defect. Further, Roberts did not offer evidence that any
defect in the monitor was a substantial factor in causing his injury, because he did
not present any evidence that it would have been foreseeable that the defect would
cause him to stop taµing his medication.
In failure to warn claims, causation may be proven by showing 'that a
different warning would have altered the way the plaintiff used the product.'
Rivera, 209 P.3d at 275. However, Roberts did not offer any evidence that a
different warning would have caused him to remain on his medication or otherwise
alter the way he used the monitor.
Thus, the district court did not err when it determined that Roberts did not
offer evidence of causation for the strict products liability claim.
5
3. To prove proximate cause in a negligence action, 'it must appear that the
injury was the natural and probable consequence of the negligence or wrongful act,
and that it ought to have been foreseen in the light of the attending circumstances.'
Van Cleave v. Kietz-Mill Minit Mart, 633 P.2d 1220, 1221 (Nev. 1981) (per
curiam) (internal quotation marµs omitted). '[A] negligence action will not stand
when there is an intervening cause that in and of itself is the natural and logical
cause of the harm.' Wood v. Safeway, Inc., 121 P.3d 1026, 1037 (Nev. 2005)
(internal quotation marµs omitted).
As Roberts's own doctor testified, the natural and logical cause of this stroµe
was Roberts's decision to stop taµing his medication. Roberts made that decision
without consulting his doctor and after taµing fish oil pills, being told by his doctor
to reduce his medication by half, and adding the substance Co-Ï10 to his
'homeopathic' regimen. Further, Roberts offered insufficient circumstantial
evidence to suggest that there was a monitor defect or that it would be foreseeable
to the Defendants that he would stop taµing his medication as a result of using the
monitor. Thus, the district court correctly granted summary judgment on the
negligence claim.
4. Under Nevada law, a plaintiff is not required to negate any alternative
causes of an accident to establish a defective product. See Nev. Contract Servs.,
6
Inc. v. Squirrel Cos., Inc., 68 P.3d 896, 899-900 (Nev. 2003) (concluding such a
requirement did not apply for a breach of warranty action to survive summary
judgment); Stacµiewicz, 686 P.2d at 927 (stating such a burden did not apply, as a
matter of law, in the context of a judgment notwithstanding the verdict for a
products liability case). The district court improperly held that Roberts bore the
burden of establishing that the other factors raised by Defendants, such as alcohol
use, smoµing, and improper use of the monitor's large cuff, 'did not cause or
contribute to his stroµe.' Roberts objected to the admissibility of evidence relating
to whether a variety of other factors caused the stroµe.
Under harmless error analysis, a district court should be reversed for
improperly considering other factors, if such consideration was 'prejudicial' to the
plaintiff. See Las Vegas Sands, LLC v. Nehme, 632 F.3d 526, 534 (9th Cir. 2011).
Consideration of other factors by the court would be prejudicial, if excluding them
'would have precluded a grant of summary judgment, or warranted a grant of
summary judgment to the other party.' Id. While the court improperly considered
evidence of alternative causes, its error was harmless here. See Norse, 629 F.3d at
973. As noted above, Roberts did not offer sufficient evidence for his negligence
or strict product liability claims. Thus, we hold that any error in considering
evidence of other factors was harmless.
7
AFFIRMED.
8
FILED
10-16583 Roberts v. Albertson's LLC DEC 28 2011
MOLLY C. DWYER, CLERK
OLIVER, Chief U.S. District Judge, dissenting. U.S . CO U RT OF AP PE A LS
One of the grounds on which the district court granted Defendant's motion for
summary judgment was that Plaintiff was required to, and did not, present 'expert
testimony establishing . . . that the blood pressure monitor was defective.' I agree
with the majority that 'Nevada's courts have not expressly stated that a plaintiff must
present expert testimony to establish a defect.' However, I disagree with the
majority's conclusion that, assuming no such requirement, Plaintiff did not otherwise
present evidence that the monitor was defective. Under Nevada law, a plaintiff may
rely on evidence other than expert testimony to show that a defective product failed
to perform in the manner reasonably expected. See, e.g., Van Duzer v. Shoshone Coca
Cola Bottling Co., 741 P.2d 811, 812-13 (Nev. 1987) (finding bottle was unreasonably
dangerous based on lay witness testimony). Here, Plaintiff presented evidence that
he suffered a stroµe as a result of high blood pressure at a time when his monitor was
consistently showing that his pressure was normal or below normal. I also agree
with the majority that the district court erred when it held that Plaintiff had failed to
offer evidence of causation because he did not 'produce medical expert testimony
opining to a reasonable degree of medical certainty that the allegedly defective
product caused the Plaintiff's injury.' Instead, the district court should have
determined whether there was evidence that the design defect in the product was a
substantial factor in causing his injuries. I disagree with the majority's conclusion
that, nevertheless, Plaintiff did not present evidence that the design defect was a
substantial factor in causing his injury. Plaintiff presented evidence that he reported
his blood pressure readings to his doctor or a member of the doctor's staff, and
Plaintiff was told to reduce his intaµe of blood pressure medication by one-half. He
also presented evidence that, because the monitor gave him consistently normal
readings during the period between visits to his doctor, it caused him to believe that
his blood pressure was under control such that no medication was required. Although
the majority correctly indicates, 'we must focus on the foreseeability of the nature and
extent of the injury the [P]laintiff claims was caused by the defect,' I conclude that
such a focus leads to a result that is contrary to that reached by the majority. While
it might not be wise, I thinµ it is foreseeable that one might conclude that if a blood
pressure monitor consistently indicates that one's blood pressure is normal, one might
also conclude that one is not currently suffering from that condition.
Thus, I would reverse the granting of summary judgment and remand the case
bacµ to the district court for trial.
-2-