NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 27 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
VERONICA OCHOA-VALENZUELA, No. 15-16388
wife, for themselves and for and on behalf
of the minor children, Cesar Francisco De D.C. No. 4:10-cv-00156-RCC
Viana Ochoa and Kevin Aljandro De Viana
Ochoa,
MEMORANDUM*
Plaintiff-Appellant,
v.
FORD MOTOR COMPANY INC.,
Defendant-Appellee.
Appeal from the United States District Court
for the District of Arizona
Raner C. Collins, Chief Judge, Presiding
Argued and Submitted February 1, 2017
University of Arizona – Tucson, Arizona
Before: LEAVY, MURGUIA, and FRIEDLAND, Circuit Judges.
Veronica Ochoa-Valenzuela, on behalf of herself and her minor children,
sued Ford Motor Company in connection with a single-car rollover accident
involving a 2000 Ford Focus. She asserted claims for strict products liability and
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
negligence. After a mistrial because of a hung jury and a second trial lasting
sixteen days, the jury returned a verdict for Ford. Ochoa appeals the judgment of
the District Court for the District of Arizona and the order denying her Rule 59
motion for a new trial. Ochoa asserts the following challenges: 1) several of the
district court’s pre-trial and trial evidentiary rulings were erroneous and
prejudicial; 2) the district court abused its discretion in instructing the jury on the
standard of care; and 3) the district court erred in granting partial summary
judgment as to the claim for punitive damages.1 We have jurisdiction under 28
U.S.C. § 1291, and we affirm.
The parties are familiar with the facts, so we do not repeat them here.
A. Evidentiary Rulings
1. Cross-examination of expert witnesses
Ochoa argues that the district court admitted inadmissible hearsay during
cross-examination of one of her expert witnesses, Brian Herbst, by allowing him to
be questioned about an opinion his business partner stated during a deposition in an
unrelated case. Ochoa simultaneously contends that the district court erred by not
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We reject Ford’s contention that Ochoa’s opening brief wholly fails to satisfy
Fed. R. App. P. 28 such that we should strike her brief and dismiss the appeal.
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allowing her counsel to question one of Ford’s experts using the deposition
testimony of an expert in another unrelated case. Ford argues that its cross-
examination of Herbst about his business partner’s opinions was permissible
because Herbst had relied on them in forming his own opinions, and because the
questions were impeachment and intended to show bias or prejudice.
The record shows that neither party’s expert had relied on the testimony of
either out-of-court witness to form his expert opinion in this case. See Fed. R.
Evid. 703. There is also no hearsay exclusion or exception applicable to this
situation. See Fed. R. Evid. 801, 802, 803. Indeed, Ford concedes that Rule
803(18) is inapplicable. While inquiry into the existence of bias or prejudice of an
expert is permitted, United States v. Preciado-Gomez, 529 F.2d 935, 942 (9th
Cir. 1976), the use of testimony from another expert who did not testify in this trial
constitutes admission of inadmissible hearsay. See In re Hanford Nuclear
Reservation Litig., 534 F.3d 986, 1012 (9th Cir. 2008). The district court,
therefore, did not err by precluding examination about another expert’s
contradictory testimony during Ford’s expert’s trial testimony. On the other hand,
the district court abused its discretion by allowing Ochoa’s expert to be asked
about a conflicting opinion stated by his business partner, where it had not been
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established that the testifying expert had endorsed or adopted the partner’s opinion.
Even though the district court committed error, reversal is not warranted
because the error was harmless. See McEuin v. Crown Equip. Corp., 328 F.3d
1028, 1032 (9th Cir. 2003) (“A reviewing court should find prejudice only if it
concludes that, more probably than not, the lower court’s error tainted the verdict.”
(quoting Tennison v. Circus Circus Enters., Inc., 244 F.3d 684, 688 (9th
Cir. 2001)). In this particular case, the out-of-court deposition testimony was not
admitted into evidence during the trial. Inquiry into the partner’s opinion was
limited to a very small portion of Herbst’s cross-examination, and Herbst was
allowed to explain why and how he held an opinion that appeared to differ from
that of his partner. Finally, the “impeached” roof-strength opinion was not the
cornerstone of Herbst’s expert testimony.
During closing argument, defense counsel challenged Herbst’s credibility
and made reference to his partner’s out-of-court opinion. Although it was
inappropriate for counsel to suggest that the partner had expressed an opinion in
this case, this fleeting reference to the partner’s opinion was harmless. Herbst had
expressed various opinions at trial—opinions not limited to roof strength, but also
about roof design, roof testing, and the foreseeability of Ochoa’s injuries. There is
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no indication in the record that Herbst’s testimony or his business partner’s opinion
was discussed at length by defense counsel during closing arguments. Ochoa also
had another expert, Carley Ward, who testified about causation and roof crush. On
this record, we cannot conclude that, had the partner’s opinion testimony been
excluded, it would have altered the result of the trial.
2. Exclusion of an expert
The district court excluded the expert testimony of Ochoa’s federal safety
standard expert, Allan Kam, as not relevant. We review for abuse of discretion the
exclusion of expert testimony. United States v. Benavidez-Benavidez, 217 F.3d
720, 723 (9th Cir. 2000). On appeal, Ochoa argues that Kam, a former government
lawyer, would have offered testimony relevant to the applicable federal safety
standard and how the federal agency charged with issuing the standard created it.
We find no abuse of discretion in the district court’s exclusion of Ochoa’s expert
testimony regarding the federal safety standards.
“The relevancy bar is low, demanding only that the evidence ‘logically
advances a material aspect of the proposing party’s case.’” Messick v. Novartis
Pharm. Corp., 747 F.3d 1193, 1196 (9th Cir. 2014) (quoting Daubert v. Merrell
Dow Pharm., Inc., 43 F.3d 1311, 1315 (9th Cir. 1995)). Ochoa argues that the
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exclusion of Kam’s testimony prevented her from presenting “a realistic view” of
the applicable federal safety standards, and permitted Ford to create the false
impression that formal compliance with federal standards meant the vehicle was
reasonably safe. This was not a case of minimal compliance, however—the roof of
the car had more than double the strength required by the federal standard. Ochoa
had an engineering expert who emphasized his opinion that the standard was
insufficient. We hold that the district court did not abuse its discretion in
excluding Kam’s testimony because its probative value was substantially
outweighed by the waste of time that would be involved.
3. Exclusion of documents and testimony
Ochoa contends that the district court abused its discretion by excluding
three Ford documents from the 1960s. The district court excluded these documents
as irrelevant. According to Ochoa, these three documents are indisputably relevant
and should have been admitted to show, among other things, that strong roofs
protect vehicle occupants from severe injury better than a weak roof. The district
court acted within its discretion by excluding these exhibits because they were not
probative of whether the 2000 Ford Focus was defective. See Fed. R. Evid. 402.
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Ochoa next contends that the district court erred by excluding evidence that
demonstrated what Ford knew after the vehicle’s manufacture in 2000. Given
Ochoa’s failure to direct the court to the specific rulings that prevented her from
introducing any testimony and all but one “post-2000” document, we cannot say
that the district court committed reversible error. It is impossible to determine
whether the evidence should have been admitted or excluded without
understanding what the documents or testimony were offered to prove. Because
Ochoa did not support her post-2000 evidentiary arguments with adequate citations
to the record, we deem these arguments waived. See Alaskan Indep. Party v.
Alaska, 545 F.3d 1173, 1181 (9th Cir. 2008) (“Because Appellants have provided
no citation to the record or support for their claim [], we hold that this argument is
waived.”); see also Fed. R. Evid. 103(a)(2) (to claim an evidentiary error on the
basis of excluded evidence, a party must inform the court of its substance by an
offer of proof, unless the substance was apparent from the context).
Ochoa directed the court to the exclusion of a 2008 study authored by the
Insurance Institute for Highway Safety. Here, Ochoa’s primary argument is that
the district court had allowed the study to be read to the jury during the first trial
(which resulted in a mistrial), but clearly erred by excluding it in the second trial.
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Although the district court ruled differently on the same piece of evidence between
trials, the district court did not abuse its discretion by excluding a study that does
not address the product at issue or whether it was unreasonably dangerous, even at
the time of trial. We need not decide whether the district court ruled correctly in
the first trial.
B. Jury Instructions
Ochoa’s contentions regarding the district court’s refusal to give a special
jury instruction about the standard of care are without merit. We review civil jury
instructions for abuse of discretion. See Gilbrook v. City of Westminster, 177 F.3d
839, 860 (9th Cir. 1999). The district court fairly and adequately covered the
standard of care in its instructions to the jury, correctly stated the law, and
provided jury instructions that overall were not misleading. See id.; see also Dart
v. Wiebe Mfg., Inc., 709 P.2d 876, 883-84 (Ariz. 1985) (in banc).
C. Punitive Damages
Because we find no error requiring reversal, we need not reach the issue of
whether the district court correctly granted partial summary judgment on the issue
of punitive damages.
AFFIRMED.
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