Javier Alcala v. Monsanto Company , 498 F. App'x 717 ( 2012 )

FILED
NOT FOR PUBLICATION NOV 20 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
JAVIER ALCALA, No. 10-16164
Plaintiff - Appellant, D.C. No. 4:08-cv-04828-PJH
v.
MEMORANDUM *
MONSANTO COMPANY,
Defendant - Appellee.
Appeal from the United States District Court
for the Northern District of California
Phyllis J. Hamilton, District Judge, Presiding
Submitted November 13, 2012 **
Before: CANBY, TROTT, and W. FLETCHER, Circuit Judges.
Javier Alcala appeals pro se from the district court’s summary judgment in
his diversity action alleging strict products liability and negligence claims arising
from his occupational exposure to herbicides produced by Monsanto. We have
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
jurisdiction under 28 U.S.C. § 1291. We review de novo. Primiano v. Cook, 598
F.3d 558, 563 (9th Cir. 2010). We vacate and remand.
The district court granted summary judgment to Monsanto based on its
finding that Alcala failed to provide evidence establishing a link between his
injuries and Monsanto’s products. To the contrary, Alcala provided detailed
records establishing his workplace exposure to Monsanto’s products. Alcala
provided medical reports that establish a link between his symptoms and his
occupational exposure to herbicides, and there are specific references in some of
those medical reports to glyphosate, the active ingredient in Monsanto’s products.
Alcala also submitted evidence that his employer and the county agency did not
require a more protective filter on the spray truck that he used because Monsanto’s
labels did not require such protection for non-agricultural occupational exposure.
In the circumstances of this case, where Alcala was proceeding pro se, it was
improper to grant summary judgment without providing sufficient notice of the
possible deficiencies in his evidence. If, under California case law, Alcala also
needed to designate expert testimony in order to raise a triable dispute as to
whether his exposure to Monsanto’s products was a substantial factor in causing
his medical problems, he should have been notified of the consequences of his
failure to designate an expert. See Waters v. Young, 100 F.3d 1437, 1441 (9th Cir.
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1996) (“As a general matter, this court has long sought to ensure that pro se
litigants do not unwittingly fall victim to procedural requirements that they may,
with some assistance from the court, be able to satisfy”); see also Fed. R. Civ. P.
56(c)(1)(B) (a party asserting that a fact cannot be genuinely disputed must support
the assertion by “showing . . . that an adverse party cannot produce admissible
evidence to support the fact” (emphasis added)); Fed. R. Civ. P. 56(e)(1) (noting
that if a party fails to properly support an assertion of fact, “the court may [] give
an opportunity to properly support or address the fact”). Accordingly, we vacate
and remand with instructions to allow Alcala an opportunity to cure any technical
defects in his evidence. We recommend that the district court consider appointing
counsel to represent Alcala on remand.
The appellee shall bear the costs on appeal.
VACATED and REMANDED.
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