Bemo USA Corp. v. Jake's Crane, Rigging & Transport International, Inc.

FILED
NOT FOR PUBLICATION NOV 10 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
BEMO USA CORPORATION; No. 10-16663
KOVACH, INC.
D.C. No. 2:08-cv-00745-JCM-
Plaintiffs - Appellees, PAL
v.
MEMORANDUM *
JAKE’S CRANE, RIGGING &
TRANSPORT INTERNATIONAL, INC.,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Nevada
James C. Mahan, District Judge, Presiding
Submitted October 24, 2011 **
San Francisco, California
Before: GRABER and IKUTA, Circuit Judges, and KAPLAN,*** District Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
This panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Lewis A. Kaplan, Senior District Judge for the United
States District Court for the Southern District of New York, sitting by designation.
The district court did not err in granting summary judgment in favor of
Bemo USA Corp. for the business interruption damages of $2,996,661 because the
district court’s decision to admit Martha Zehnder’s report as reliable expert opinion
evidence was not “illogical, implausible, or without support in inferences that may
be drawn from facts in the record.” United States v. Hinkson, 585 F.3d 1247,
1263, 1264–65 (9th Cir. 2009) (en banc). Ms. Zehnder’s background and the
contents of her report provided ample basis for the district court to conclude that
her opinion was sufficiently reliable to be received in evidence, particularly as the
report provided considerable detail as to her precise methodology and there was no
challenge to its propriety. This was, therefore, one of those “ordinary cases where
the reliability of the expert’s methods [wa]s properly taken for granted,” Kumho
Tire Co. v. Carmichael, 526 U.S. 137, 152 (1999), and there was no abuse of
discretion.1
1
The contention that the district court erred because the report failed to
affirm explicitly that it was based on generally accepted accounting principles
(“GAAP”) fails for at least two reasons. First, the district court could reasonably
conclude from the phrasing of Zehnder’s disclaimer that she did use GAAP except
to the extent that she capped damages according to the requirements of the
insurance policy. See Fed. R. Evid. 104(a). Second, there was no evidence that
GAAP even addresses the question how damages for business interruption should
be computed, much less that Ms. Zehnder failed to adhere to GAAP.
2
Jake’s Crane, Rigging & Transport International Inc. waived its mitigation
defense because it was not “argued specifically and distinctly” in its opening brief
on appeal. See Greenwood v. FAA, 28 F.3d 971, 977 (9th Cir. 1994). In any event,
a mitigation defense would not succeed: there is no dispute that the manufacturing
time for the replacement machine was 12 to 15 months, so Bemo USA Corp.
would be entitled to recover for at least one year of business income loss regardless
of any delay in ordering the new machine.
AFFIRMED.
3