Cherri Bunker v. Ford Motor Company , 640 F. App'x 661 ( 2016 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FILED
FOR THE NINTH CIRCUIT
FEB 18 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
CHERRI ANNE BUNKER, No. 13-16896
Plaintiff - Appellant, D.C. No. 2:11-cv-01286-PMP-
NJK
v.
FORD MOTOR COMPANY, MEMORANDUM*
Defendant - Appellee.
Appeal from the United States District Court
for the District of Nevada
Philip M. Pro, Senior District Judge, Presiding
Argued and Submitted January 5, 2016
San Francisco, California
Before: WALLACE, KOZINSKI, and O’SCANNLAIN, Circuit Judges.
Appellant Bunker appeals from the district court’s summary judgment in
favor of Appellee Ford Motor Company on Bunker’s Nevada common-law claims
for strict products liability, negligence, negligent failure to inspect and warn,
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
breach of implied warranty, and misrepresentation. We have jurisdiction under 28
U.S.C. § 1291 and we affirm.
Bunker argues that the district court abused its discretion in excluding
testimony by her expert witness, Thomas Lepper. We review the district court’s
ruling under the abuse of discretion standard. Lust v. Merrell Dow Pharm., Inc., 89
F.3d 594, 596 (9th Cir. 1996). Lepper produced a report in which he opined that
Bunker’s 2007 Ford Ranger truck was flawed in design because—with the key
ignition in the “Off”position—the truck’s brake shift interlock system allowed the
transmission to be shifted out of park without someone applying pressure to the
brake pedal.
The district court did not abuse its discretion in excluding Lepper’s
testimony. Under Rule 702 of the Federal Rules of Evidence, a witness may testify
as an expert only if the witness “is qualified as an expert by knowledge, skill,
experience, training, or education.” Because Lepper had no experience with brake
shift interlock systems, he was not “qualified” to testify about the truck’s system.
At his deposition, he testified that he did not know the history of such systems, that
only a few of his prior expert testimony engagements about automobiles related to
transmission issues, and that none of his previous engagements related to brake
shift interlock systems specifically. Lepper also conceded that he did not conduct a
2
survey to see whether other automobile manufacturers used brake shift interlock
systems like the one in the 2007 Ford Ranger truck. Because Lepper had virtually
no familiarity with brake shift interlock systems, the district court did not abuse its
discretion in excluding his testimony.
We review the district court’s summary judgment de novo. City of Pomona
v. SQM N. Am. Corp., 750 F.3d 1036, 1043 (9th Cir. 2014). We must view the
evidence in the light most favorable to the nonmoving party and then determine
“whether there are any genuine issues of material fact and whether the district
court correctly applied the relevant substantive law.” Wallis v. Princess Cruises,
Inc., 306 F.3d 827, 832 (9th Cir. 2002). Each of Bunker’s causes of action has
unique elements that she must satisfy to recover. But one common element among
them is causation. See Klasch v. Walgreen Co., 264 P.3d 1155, 1158 (Nev. 2011)
(holding that causation is an element of negligence claims); Foster v. Dingwall,
227 P.3d 1042, 1052 (Nev. 2010) (same for misrepresentation claims); Nev.
Contract Servs., Inc. v. Squirrel Cos., 68 P.3d 896, 899 (Nev. 2003) (same for
breach of warranty claims); Fyssakis v. Knight Equip. Corp., 826 P.2d 570, 571
(Nev. 1992) (per curiam) (same for strict liability claims). The only evidence
Bunker proffered on causation was Lepper’s testimony. Since that testimony is not
admissible, as explained above, Bunker failed to show that there was any genuine
3
dispute of material fact as to causation. Accordingly, we affirm the district court’s
summary judgment in favor of Ford.
AFFIRMED.
4