                                                                              FILED
                            NOT FOR PUBLICATION                               OCT 21 2014

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



                            FOR THE NINTH CIRCUIT


MATTHEW R. LINDNER, individually,                No. 12-15470
as surviving parent and legal heir of
Camila Lynete Lindner, a deceased minor          D.C. No. 2:10-CV-00051-LDG-
and JOSEPH L. BENSON, II, Esquire, as            VCF
guardian ad litem for Paulina Granados-
Martinez,
                                                 MEMORANDUM*
              Plaintiffs - Appellants,

  v.

FORD MOTOR COMPANY, a Delaware
corporation; et al.,

              Defendants,

  And

EVENFLO COMPANY, INC., a Delaware
corporation,

              Defendant - Appellee.


                   Appeal from the United States District Court
                            for the District of Nevada
                 Lloyd D. George, Senior District Judge, Presiding



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                    Argued and Submitted September 11, 2014
                            San Francisco, California

Before: BEA, IKUTA, and HURWITZ, Circuit Judges.

      Matthew Lindner and Joseph Benson (collectively “Lindner”) brought this

Nevada product defect action against Evenflo Company individually and on behalf

of members of the Lindner family who were injured in a vehicle rollover accident

in Mexico. During that accident, baby Camila Lindner was ejected from the

vehicle and killed while strapped into an Evenflo car seat. The district court

granted Evenflo’s motion to exclude the testimony of Lindner’s experts on design

defect and causation, and granted summary judgment in favor of Evenflo. We

reverse on both grounds.

      1. We review the admission of expert testimony under Federal Rule of

Evidence 702 for abuse of discretion. Lust v. Merrell Dow Pharmaceuticals, Inc.,

89 F.3d 594, 596 (9th Cir. 1996). The district judge’s order did not disqualify

plaintiff expert Dr. Hoffman because he was unqualified or because he used

unreliable, unscientific methodology, as Federal Rule of Evidence 702 and the

Daubert test require. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579,

589-92 (1993). Rather, the district court determined that there was insufficient




                                          2
evidence to support Dr. Hoffman’s opinion on causation, as Dr. Hoffman had

“conceded the lack of any empirical evidence indicating that the release handle

would hit the front seat.” This conclusion is incorrect because, as Dr. Hoffman

testified during his deposition, his opinion was based on his observation of the

empirical evidence: “the release handle of that [child car] seat” was “exposed to

the passenger front seat,” and the “passenger front seat. . . .was also deformed and

slightly inclined.” Therefore, the district court abused its discretion in finding that

Hoffman’s causation theory was insufficiently grounded in evidence.

      2. We review the grant of summary judgment de novo. MetroPCS Inc. v.

City and County of San Francisco, 400 F.3d 715, 720 (9th Cir. 2005). The district

court’s order does not impugn Dr. Hoffman’s opinion that the car seat was

defective because its release handle was prone to accidental release. If this

defective release handle was activated by objects in the car during the rollover and

caused Camila’s injuries, as Lindner’s other experts opined, that would be

sufficient to create a triable issue of fact in this case, since the consumer

expectation test is part of Nevada products liability law. Primiano v. Cook, 598

F.3d 558, 567 (9th Cir. 2010). Thus, the district court erred in granting summary

judgment.




                                           3
    The district court’s order granting summary judgment to Evenflo Company

is REVERSED.




                                    4
                                                                                  FILED
Lindner v. Evenflo, No. 12-15470                                                  OCT 21 2014

                                                                              MOLLY C. DWYER, CLERK
IKUTA, Circuit Judge, specially concurring:                                     U.S. COURT OF APPEALS



      The district court ruled, in effect, that Dr. Hoffman’s opinion on causation

would not “help the trier of fact to understand the evidence or to determine a fact in

issue,” and was not “based on sufficient facts or data.” Fed. R. Evid. 702. Because

the record shows that no evidence supported Dr. Hoffman’s opinion that the

release handle (as opposed to the carrier handle) of the child car seat released

because it hit the back of the front seat, the district court’s ruling 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, 1251 (9th Cir. 2009).

Therefore, the district court did not abuse its discretion in excluding Dr. Hoffman’s

causation opinion. Nevertheless, even excluding this opinion, there was sufficient

evidence to create a genuine issue of material fact regarding design defect and

causation. Therefore I concur in the result.
