Kimberly Archie v. Pop Warner Little Scholars Inc ( 2021 )


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  •                            NOT FOR PUBLICATION                            FILED
    UNITED STATES COURT OF APPEALS                        SEP 10 2021
    MOLLY C. DWYER, CLERK
    U.S. COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    KIMBERLY ARCHIE, as survivors of                No.    20-55081
    decedent Paul Bright Jr.; JO CORNELL, an
    individual, and as survivor of decedent Tyler   D.C. No.
    Cornell,                                        2:16-cv-06603-PSG-PLA
    Plaintiffs-Appellants,
    MEMORANDUM*
    v.
    POP WARNER LITTLE SCHOLARS,
    INC., a nonprofit corporation,
    Defendant-Appellee.
    Appeal from the United States District Court
    for the Central District of California
    Philip S. Gutierrez, Chief District Judge, Presiding
    Argued and Submitted August 30, 2021
    Pasadena, California
    Before: IKUTA, BENNETT, and R. NELSON, Circuit Judges.
    Appellants Kimberly Archie and Jo Cornell filed suit under the Class Action
    Fairness Act of 2005 (CAFA) against Pop Warner Little Scholars, Inc. (“Pop
    Warner”). The operative complaint asserted various state law claims based on
    *
    This disposition is not appropriate for publication and is not precedent
    except as provided by Ninth Circuit Rule 36-3.
    allegations that Pop Warner failed to provide for the safety and health of its child
    participants. Appellants alleged that playing Pop Warner football caused their
    sons’ brain damage known as chronic traumatic encephalopathy (“CTE”), that
    CTE caused their sons to engage in suicidal or reckless behavior, and that such
    behavior ultimately led to their sons’ untimely deaths.
    The district court granted summary judgment to Pop Warner because
    Appellants’ causation experts rendered unreliable and thus inadmissible opinions.
    As an alternative basis supporting its summary judgment order, the district court
    found that, even assuming Appellants’ experts rendered admissible opinions,
    Appellants produced insufficient evidence to create a triable issue as to causation
    under California law. Appellants challenge the district court’s summary judgment
    order. Pop Warner also raises the issue that the complaint fails to allege minimal
    diversity under the CAFA, but the parties agree that this jurisdictional defect can
    be corrected under 
    28 U.S.C. § 1653
    .
    We have jurisdiction under 
    28 U.S.C. § 1291
    . We order that the complaint
    be amended, nunc pro tunc, to reflect that Appellants are citizens of California and
    affirm the district court’s summary judgment order.
    “[W]e review questions of jurisdiction even if raised for the first time on
    appeal.” United States v. Powell, 
    24 F.3d 28
    , 30 (9th Cir. 1994). We review de
    novo the district court’s grant of summary judgment, viewing the evidence in the
    2
    light most favorable to the non-moving party. Messick v. Novartis Pharms. Corp.,
    
    747 F.3d 1193
    , 1199 (9th Cir. 2014). “We review a district court’s decision to
    exclude expert testimony for abuse of discretion.” United States v. Benavidez-
    Benavidez, 
    217 F.3d 720
    , 723 (9th Cir. 2000). “Under the abuse of discretion
    standard, we cannot reverse unless we have a definite and firm conviction that the
    district court committed a clear error of judgment.” Id.
    1.     To establish jurisdiction under the CAFA, Appellants needed to allege
    in their complaint that one of them was a citizen of a state different from any
    defendant. See 
    28 U.S.C. § 1332
    (d)(2)(A). The complaint failed to do so. But
    “[d]efective allegations of jurisdiction may be amended, upon terms, in the trial or
    appellate courts.” 
    28 U.S.C. § 1653
    . Because the record supports that Appellants
    were California citizens when they filed the complaint and the parties agree on that
    fact, we exercise our authority under § 1653 and order the complaint amended,
    nunc pro tunc, to reflect that Appellants are citizens of California. See Snell v.
    Cleveland, Inc., 
    316 F.3d 822
    , 828 (9th Cir. 2002) (per curiam).
    2.     Under Federal Rule of Evidence 702, expert testimony must be
    relevant and reliable. See Kumho Tire Co. v. Carmichael, 
    526 U.S. 137
    , 147
    (1999). Only the reliability prong is at issue. “The reliability threshold requires
    that the expert’s testimony have ‘a reliable basis in the knowledge and experience
    of the relevant discipline.’ The court must determine ‘whether the reasoning or
    3
    methodology underlying the testimony is scientifically valid.’” Messick, 747 F.3d
    at 1197 (citations omitted). Exclusion is permissible when “there is simply too
    great an analytical gap between the data and the opinion proffered.” Gen. Elec.
    Co. v. Joiner, 
    522 U.S. 136
    , 146 (1997).
    Appellants introduced declarations and reports from two causation experts to
    establish that Pop Warner football was a substantial factor in causing the young
    men’s deaths.1 Both experts concluded that playing Pop Warner football could
    have caused CTE and that CTE is linked to suicidal and reckless behaviors, and
    based on those underlying conclusions, the experts ultimately concluded that Pop
    Warner was therefore a substantial causal factor in the deaths. Both opinions,
    however, contained no explanation supporting the logical leap from the underlying
    conclusions to the ultimate conclusion. Put differently, neither expert explained
    why Pop Warner was a substantial cause rather than simply a possible cause.
    Given this logical gap, the district court did not abuse its discretion in finding that
    the expert opinions were unreliable and thus inadmissible. Because none of
    Appellants’ claims on appeal can survive without expert testimony establishing
    1
    Appellants agree that California substantive law, including its substantial factor
    test, applies to their claims on appeal. See Rutherford v. Owens-Illinois, Inc., 
    941 P.2d 1203
    , 1214 (Cal. 1997).
    4
    causation,2 see Jones v. Ortho Pharm. Corp., 
    209 Cal. Rptr. 456
    , 460 (Ct. App.
    1985), the district court properly granted summary judgment to Pop Warner.
    3.     We also agree with the district court’s alternative holding that, even
    assuming Appellants’ causation experts rendered admissible opinions, Appellants’
    evidence failed to raise a triable issue as to causation under California law.
    Appellants had to proffer an expert opinion “that contain[ed] a reasoned
    explanation illuminating why the facts ha[d] convinced the expert, and therefore
    should convince the jury, that it [was] more probable than not the negligent act
    was a cause-in-fact of the plaintiff’s injury.” Jennings v. Palomar Pomerado
    Health Sys., Inc., 
    8 Cal. Rptr. 3d 363
    , 370 (Ct. App. 2003). Appellants failed to do
    so, as their experts’ opinions showed only that Pop Warner football could have
    caused the deaths and contained no explanation why Pop Warner football likely
    caused the deaths.3
    The complaint is ordered AMENDED, nunc pro tunc; and the district
    court’s summary judgment order is AFFIRMED.
    2
    The district court determined that all of Appellants’ claims on appeal depended
    on a showing of causation supported by expert testimony. Appellants do not
    challenge that determination.
    3
    To the extent the district court based its conclusion on the lack of evidence as to
    concussions or head injuries suffered by the two decedents during their time
    playing Pop Warner football, we agree that such reliance was erroneous. But any
    such error was harmless given that we agree with the district court’s alternative
    basis for concluding that Appellants had failed to create a triable issue as to
    causation.
    5