Summary
holding that plaintiff's efforts to depose certain witnesses "did not constitute new evidence because the opportunity to depose the [witnesses] had long been present and [plaintiff] was given ample time to pursue the necessary discovery"
Summary of this case from HCC Life Ins. Co. v. ConroyOpinion
No. 05-16225.
Argued and Submitted April 19, 2007.
Filed August 21, 2007.
Timothy V. Magill, Esq., Magill Law Offices, Fresno, CA, for Plaintiff-Appellant.
Lowell T. Carruth, Esq., McCormick Barstow Sheppard, Wayte Carruth, LLP, Fresno, CA, for Defendants-Appellees.
Appeal from the United States District Court for the Eastern District of California, Lawrence J. O'Neill, Magistrate Judge, Presiding. D.C. No. CV-03-06478-LJO.
MEMORANDUM
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
Appellant was injured when his hands were burned in a heat-sealing machine. The primary issue before the Court is whether there is a genuine issue of material fact on the question whether Appellee Jefferson Smurfit Corporation, formerly known as Container Corporation of America (collectively "Smurfit"), manufactured, designed or placed into the stream of commerce the machine that injured Appellant. The lower court entered summary judgment in favor of Smurfit, concluding that Smurfit produced affirmative evidence that the injury-producing machine was not a Smurfit machine and that Appellant failed to meet his burden of raising a genuine issue of fact that the machine was a Smurfit machine. Appellant appeals this determination, several evidentiary rulings, and the denial of his motions for reconsideration. After carefully considering the evidence, we affirm.
Because the parties are familiar with the factual and procedural history of this case, we will not recount it here. In cases predicated upon products liability, a plaintiff must identify the manufacturer of the product and establish a causal relationship between the injury and the product. Smurfit produced declarations of two long-term Smurfit employees establishing that it did not manufacture, design, install, repair or sell the injury-producing machine. Both employees articulated specific differences between the Smurfit machine and the injury-producing machine and concluded that the injury-producing machine was not designed, manufactured, installed, repaired or sold by Smurfit.
Sindell v. Abbott Labs., 26 Cal.3d 588, 597-98, 163 Cal.Rptr. 132, 607 P.2d 924 (Cal. 1980) ("[A]s a general rule, the imposition of liability depends upon a showing by the plaintiff that his or her injuries were caused by the act of the defendant or by an instrumentality under the defendant's control").
Appellant had the burden of raising a genuine issue of material fact on the question whether the injury-producing machine was a Smurfit machine, and he failed to do so. Appellant relied primarily upon the testimony of Robert Maskell, which established at best that the injury-producing machine was similar in form and function to the Smurfit machine, but not that Smurfit actually manufactured the machine. Since the lower court did not abuse its discretion in excluding the declarations of James Flynn because they lacked foundation, and Appellant has presented no other evidence sufficient to raise a genuine issue of material fact, we affirm.
United States v. Various Slot Machines on Guam, 658 F.2d 697, 700 (9th Cir. 1981) ("[I]n the context of a motion for summary judgment, an expert must back up his opinion with specific facts").
We also affirm the lower court's denial of Appellant's post-trial motions. It was not an abuse of discretion for the lower court to conclude that Appellant's efforts to depose the Smittcamps did not constitute new evidence because the opportunity to depose the Smittcamps had long been present and Appellant was given ample time to pursue the necessary discovery. We therefore affirm the district court's denial of the motion to continue, the motion for reconsideration based on new evidence, and the motion for a new trial. Finally, since Appellant's spoliation argument was not properly raised below, we decline to consider it for the first time on appeal.
"This Court will not review an issue not raised or objected to below unless necessary to prevent manifest injustice, or unless the issue not objected to in the district court is one of law and does not affect or rely upon the factual record." City of Phoenix v. Com/Systems, Inc., 706 F.2d 1033, 1038 (9th Cir. 1983) (citations omitted). Neither circumstance is present in this case.
AFFIRMED.