                                                                           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                           NOT FOR PUBLICATION                              NOV 10 2011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.




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