City of Pomona v. Sqm North America Corp. , 694 F. App'x 477 ( 2017 )

FILED
NOT FOR PUBLICATION
AUG 7 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
CITY OF POMONA, No. 15-56062
Plaintiff - Appellant, D.C. No. 2:11-cv-00167-RGK-
VBK
v.
SQM NORTH AMERICA MEMORANDUM*
CORPORATION,
Defendant - Appellee.
Appeal from the United States District Court
for the Central District of California
R. Gary Klausner, District Judge, Presiding
Argued and Submitted May 10, 2017
Pasadena, California
Before: WALLACE, CHRISTEN, and WATFORD, Circuit Judges.
After a seven-day trial, a jury found SQM North America Corporation
(SQM) not liable for causing perchlorate contamination in the City of Pomona’s
(Pomona’s) water system. Pomona now appeals from that judgment. We have
jurisdiction pursuant to 28 U.S.C. § 1291, and we vacate the district court’s
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
judgment and remand for a new trial. We address Pomona’s main arguments in a
concurrently filed opinion, City of Pomona v. SQM North America Corporation,
__F.3d__ (9th Cir. 2017). We address two subsidiary issues raised by Pomona in
this memorandum disposition.
Pomona first asserts that the district court erred by refusing to give a jury
instruction on California’s consumer expectation test. A district court’s
formulation of civil jury instructions is reviewed for an abuse of discretion. Louis
Vuitton Malletier, S.A. v. Akanoc Solutions, Inc., 658 F.3d 936, 941 (9th Cir.
2011). Second, Pomona argues that the district court erred by precluding testimony
about the feasibility of an alternative fertilizer. We review evidentiary rulings for
an abuse of discretion. City of Pomona v. SQM North America Corp., 750 F.3d
1036, 1043 (9th Cir. 2014).
The district court did not abuse its discretion by precluding Pomona from
relying on California’s consumer expectation test. Under California law, there are
two potential tests for proving a design defect—the consumer expectation test and
the risk-benefit test.
Whether a plaintiff may proceed under the consumer
expectation test or whether design defect must be
assessed solely under the risk-benefit test is dependent
upon the particular facts in each case. Because in many
situations . . . the consumer . . . would have no idea how
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safe the product could be made, the consumer
expectation test is reserved for cases in which the
everyday experience of the product’s users permits a
conclusion that the product’s design violated minimum
safety assumptions and is thus defective regardless of
expert opinion about the merits of the design. . . .
Some products cause injury in a way that does not
engage its ordinary consumers’ reasonable minimum
assumptions about safe performance. For example, the
ordinary consumer of an automobile simply has no idea
how it should perform in all foreseeable situations, or
how safe it should be made against all foreseeable
hazards. In those cases, where the plaintiff’s theory of
defect seeks to examine the behavior of obscure
components under complex circumstances outside the
ordinary experience of the consumer, the consumer
expectation test is inapplicable; and defect may only be
proved by resort to the risk-benefit analysis.
McCabe v. American Honda Motor Co., Inc., 100 Cal. App. 4th 1111, 1121–22
(2002) (internal citations and quotation marks omitted) (emphasis in original).
Here, the district court’s conclusion, that the impact of commercial use of
fertilizer more than fifty years ago was not part of the everyday experience of
ordinary consumers, did not constitute an abuse of discretion. Based on the
technical and scientific nature of the contamination at issue, and the “obscure
components under complex circumstances,” Pomona did not meet its burden of
showing entitlement to a consumer expectation test instruction. Id. at 1122.
The district court did not abuse its discretion by precluding expert testimony
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about the feasibility of an alternative fertilizer. Pomona was not diligent in
designating an alternative design expert. Accordingly, there was not good cause to
reopen discovery, permit designation of Pomona’s proffered expert, and allow
expert testimony on the subject. See Johnson v. Mammoth Recreations, Inc., 975
F.2d 604, 609 (9th Cir. 1992).
However, for the reasons stated in the concurrently filed opinion, the district
court’s judgement is VACATED and the case is REMANDED for a new trial.
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