                                                                            FILED
                           NOT FOR PUBLICATION
                                                                            MAY 08 2017
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


MICHAEL SCANTLIN; ORA                            No.   15-55104
SCANTLIN,
                                                 D.C. No.
              Plaintiffs-Appellants,             5:10-cv-00333-VAP-OP

 v.
                                                 MEMORANDUM*
GENERAL ELECTRIC COMPANY,

              Defendant-Appellee,

 and

ESSCO WHOLESALE ELECTRIC,

              Defendant.


                    Appeal from the United States District Court
                       for the Central District of California
                    Virginia A. Phillips, Chief Judge, Presiding

                     Argued and Submitted November 7, 2016
                              Pasadena, California

Before: O’SCANNLAIN, FERNANDEZ, and RAWLINSON, Circuit Judges.




       *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      Appellants Michael and Ora Scantlin appeal the district court’s grant of

summary judgment in favor of Appellee General Electric Company (GE). Michael

Scantlin (Scantlin) contends that the district court erred in holding that he was

required to present expert testimony to support his claim pursuant to California’s

consumer expectations test for design defects. Scantlin asserts that lay testimony

was sufficient to demonstrate reasonable consumer expectations of an ordinary

user navigating the barrier inside an industrial switchboard. Scantlin also

maintains that the district court abused its discretion in denying his motion to

amend the final pretrial conference order to permit Scantlin to proceed to trial on a

different theory of design defect based on a risk-benefit test.

       1.    The district court properly applied California law in holding that

Scantlin was required to present expert testimony to support his consumer

expectations theory of design defect. The workings of the industrial switchboard

and its internal barrier were “sufficiently beyond common experience that the

opinion of an expert [was] required.” Campbell v. Gen. Motors Corp., 32 Cal. 3d

112, 124 (1982) (citations and alteration omitted); see also Lunghi v. Clark Equip.

Co., Inc., 153 Cal. App. 3d 485, 496 (1984) (rejecting the plaintiffs’ proffered jury

instruction premised on lay testimony rather than expert opinion in support of

consumer expectations test). In sum, lay testimony from Scantlin, his supervisor,


                                           2
and a human factors witness was insufficient to demonstrate the reasonable

expectations of an electrician1 concerning the barrier’s protections when

performing work inside a partially electrified switchboard. See Soule v. Gen.

Motors Corp., 8 Cal. 4th 548, 567 n.4 (1994) (observing that “if the expectations of

the product’s limited group of ordinary consumers are beyond the lay experience

common to all jurors, expert testimony on the limited subject of what the product’s

actual consumers do expect may be proper”) (citation omitted) (emphasis in the

original).

       2.    The district court did not abuse its discretion in denying Scantlin’s

motion to amend the final pretrial conference order. See C.F. ex rel. Farnan v.

Capistrano Unified Sch. Dist., 654 F.3d 975, 984 (9th Cir. 2011) (articulating that

“[t]he district court is given broad discretion in supervising the pretrial phase of

litigation, and its decisions regarding the preclusive effect of a pretrial order will

not be disturbed unless they evidence a clear abuse of discretion”) (citations,

alteration, and internal quotation marks omitted). Scantlin conceded that he

strategically relied on the consumer expectations test in order to exclude evidence

favorable to GE, and shifted his theory of liability only after the district court


       1
         In his opposition to summary judgment, Scantlin acknowledged that this
“is a case about whether an electrician would reasonably expect to be safe working
inside a switchboard with a barrier wall near energized busbars.”
                                            3
indicated that expert testimony was required for the consumer expectations test.

Although GE alerted Scantlin to the need for expert testimony, Scantlin faulted GE

for attempting to “dictate plaintiffs’ theory of design defect” and insisted that he

was exclusively relying on the consumer expectations test. The district court did

not abuse its discretion in denying amendment to the pretrial order based on

Scantlin’s last-minute shift in trial strategy and ensuing prejudice to GE. See Eagle

v. Am. Tel. & Telegraph Co., 769 F.2d 541, 548 (9th Cir. 1985) (holding that “[t]he

district court did not abuse its discretion by enforcing the pretrial order” because

“[i]t would be unfair to the defendant to permit the plaintiff to change strategies at

[a] late stage of litigation”); see also Hunt v. Cnty. of Orange, 672 F.3d 606, 616-

17 (9th Cir. 2012) (same).

      AFFIRMED.




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