Cindy Downing v. Pg&e ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS SEP 14 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
CINDY SUE DOWNING, No. 18-56500
Plaintiff-Appellant, D.C. No. 5:17-cv-01047-DMG-KK
v.
MEMORANDUM*
PACIFIC GAS & ELECTRIC COMPANY,
a California corporation; DOES, 1 through
10, inclusive,
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of California
Dolly M. Gee, District Judge, Presiding
Submitted September 8, 2020**
Before: TASHIMA, SILVERMAN, and OWENS, Circuit Judges.
Cindy Sue Downing appeals pro se from the district court’s summary
judgment in her 42 U.S.C. § 1983 action alleging Fourteenth Amendment claims
stemming from alleged exposure to elevated levels of arsenic and uranium. We
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
have jurisdiction under 28 U.S.C. § 1291. We review de novo. Stephens v. Union
Pac. R.R. Co., 935 F.3d 852, 854 (9th Cir. 2019). We affirm.
The district court properly granted summary judgment because plaintiff
failed to raise a genuine dispute of material fact as to whether elevated levels of
arsenic or uranium had the capacity to cause her alleged injuries, and whether
plaintiff’s alleged injuries resulted from her exposure to elevated levels of arsenic
or uranium. See Harper v. City of Los Angeles, 533 F.3d 1010, 1026 (9th Cir.
2008) (“In a § 1983 action, the plaintiff must [] demonstrate that the defendant’s
conduct was the actionable cause of the claimed injury.”); In re Hanford Nuclear
Rsrv. Litig., 292 F.3d 1124, 1133-34 (9th Cir. 2002) (in a toxic tort case, plaintiff
must demonstrate general causation, “whether the substance at issue had the
capacity to cause the harm alleged,” and specific causation, “whether a particular
individual suffers from a particular ailment as a result of exposure to a substance”).
The district court did not abuse its discretion by sustaining defendant’s
objections to certain evidence submitted by plaintiff in opposition to summary
judgment because such evidence constituted inadmissible lay opinion on matters
requiring scientific, technical, and specialized knowledge and neither plaintiff nor
the other declarants were qualified as experts on such matters under Federal Rule
of Evidence 702. See Fed. R. Evid. 701, 702; Kumho Tire Co., Ltd. v. Carmichael,
526 U.S. 137, 141 (1999) (trial court’s gatekeeping obligation applies to all types
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of expert testimony); Nationwide Transp. Fin. v. Cass Info. Sys., Inc., 523 F.3d
1051, 1058 (9th Cir. 2008) (district court’s decision on admissibility of lay opinion
testimony “will be overturned only if it constitutes a clear abuse of discretion”
(citation and quotation marks omitted)).
The district court did not abuse its discretion by ruling that plaintiff failed to
submit expert testimony on causation because plaintiff failed to disclose any expert
witnesses in her Federal Rule of Civil Procedure 26(a)(2) expert disclosures. See
Fed. R. Civ. P. 26(a)(2); King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987),
overruled on other grounds by Lacey v. Maricopa County, 693 F.3d 896 (9th Cir.
2012) (en banc) (pro se litigants are held to same procedural rules as other
litigants). Contrary to plaintiff’s contentions, plaintiff did not request an extension
of time for expert discovery and the district court did not exclude any of her
proffered expert testimony on the basis of Federal Rule of Civil Procedure 37(c).
We reject as meritless and unsupported by the record plaintiff’s contentions
that the district court violated her due process rights, was biased, or failed to
conduct a de novo review of the magistrate judge’s Report & Recommendation.
We do not consider matters not specifically and distinctly raised and argued
in the opening brief, or arguments and allegations raised for the first time on
appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).
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All pending motions and requests are denied.
AFFIRMED.
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