                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                           FOR THE NINTH CIRCUIT                              APR 14 2010

                                                                          MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS

MARK A. HOLUM, an individual,                    No. 09-35496

             Plaintiff - Appellant,              D.C. No. 2:08-cv-00081-EFS

  v.
                                                 MEMORANDUM *
EXTENDICARE HOMES, INC., a
corporation; EXTENDICARE HEALTH
SERVICES, INC, a corporation;
EXTENDICARE HEALTH FACILITIES,
INC., a corporation,

             Defendants - Appellees.


                   Appeal from the United States District Court
                     for the Eastern District of Washington
                    Edward F. Shea, District Judge, Presiding

                             Submitted April 9, 2010**
                               Seattle, Washington

Before: GOODWIN, HAWKINS and N.R. SMITH, Circuit Judges.




        *
             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).
      Mark Holum appeals summary judgment in favor of his employer,

Extendcare Homes, Inc. (“Extendcare”). Holum, a registered nurse, seeks to

recover for injuries he received when a patient at a skilled nursing facility assaulted

him at work. Holum contends that he tendered a triable issue under Washington

law whether Extendcare acted with deliberate intent to injure him, and that the

district court erred in striking statements from the record and in failing to certify a

question to the Washington Supreme Court. We affirm.

      The district court did not err in granting summary judgment for Extendcare.

Washington’s Industrial Insurance Act generally precludes employee recovery

outside of the workers’ compensation scheme for on-the-job injuries, Wash. Rev.

Code § 51.04.010, with an exception permitting tort recovery “[i]f injury results to

a worker from the deliberate intention of his or her employer to produce such

injury,” Wash. Rev. Code § 51.24.020. An employer acts with deliberate intention

if “the employer had actual knowledge that an injury was certain to occur and

willfully disregarded that knowledge.” Birklid v. Boeing Co., 904 P.2d 278, 285

(Wash. 1995). Here, viewing the evidence in the light most favorable to Holum,

nursing staff had warned Extendcare management that mentally ill residents posed

a danger to residents and staff, and the patient who assaulted Holum had exhibited

violent behavior on three prior occasions. That evidence establishes only that


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Extendcare knew about a risk of injury; it does not suggest that it knew an injury

was certain to occur. See Vallandigham v. Clover Park Sch. Dist. No. 400, 109

P.3d 805, 811 (Wash. 2005) (“Disregard of a risk of injury is not sufficient to meet

the first Birklid prong; certainty of actual harm must be known and ignored”).

Summary judgment was therefore proper.

      Nor did the district court abuse its discretion in striking portions of three

registered nurses’ statements. When reviewing evidentiary rulings in the context

of summary judgment motions, “we must affirm the district court unless its

evidentiary ruling was manifestly erroneous and prejudicial.” Orr v. Bank of

America, 285 F.3d 764, 773 (9th Cir. 2002). Here, however, the ruling was

neither. Holum argues that the nurses’ professional qualifications justify their

statements, but those qualifications do not obviate the need to comply with the

rules of evidence. Moreover, because the stricken statements would not be enough

to overcome Extendcare’s summary judgment motion, the ruling was not

prejudicial. See Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir.

2007) (“Conclusory, speculative testimony in affidavits and moving papers is

insufficient to raise genuine issues of fact and defeat summary judgment”).

      Finally, the district court did not err in declining to certify a question to the

Washington Supreme Court. Holum argues that it is unclear whether Washington


                                           3
law requires an analysis of whether workers had options to reduce the risk of

injury. Washington law, however, is sufficiently clear, and the district court did

not abuse its discretion in resolving the issues without resort to certification.

      AFFIRMED.




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