                                                                           FILED
                           NOT FOR PUBLICATION
                                                                            AUG 7 2017
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


CITY OF POMONA,                                  No. 15-56062

              Plaintiff - Appellant,             D.C. No. 2:11-cv-00167-RGK-
                                                 VBK
 v.

SQM NORTH AMERICA                                MEMORANDUM*
CORPORATION,

              Defendant - Appellee.


                    Appeal from the United States District Court
                       for the Central District of California
                    R. Gary Klausner, District Judge, Presiding

                        Argued and Submitted May 10, 2017
                               Pasadena, California

Before: WALLACE, CHRISTEN, and WATFORD, Circuit Judges.

      After a seven-day trial, a jury found SQM North America Corporation

(SQM) not liable for causing perchlorate contamination in the City of Pomona’s

(Pomona’s) water system. Pomona now appeals from that judgment. We have

jurisdiction pursuant to 28 U.S.C. § 1291, and we vacate the district court’s


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
judgment and remand for a new trial. We address Pomona’s main arguments in a

concurrently filed opinion, City of Pomona v. SQM North America Corporation,

__F.3d__ (9th Cir. 2017). We address two subsidiary issues raised by Pomona in

this memorandum disposition.

       Pomona first asserts that the district court erred by refusing to give a jury

instruction on California’s consumer expectation test. A district court’s

formulation of civil jury instructions is reviewed for an abuse of discretion. Louis

Vuitton Malletier, S.A. v. Akanoc Solutions, Inc., 658 F.3d 936, 941 (9th Cir.

2011). Second, Pomona argues that the district court erred by precluding testimony

about the feasibility of an alternative fertilizer. We review evidentiary rulings for

an abuse of discretion. City of Pomona v. SQM North America Corp., 750 F.3d

1036, 1043 (9th Cir. 2014).

       The district court did not abuse its discretion by precluding Pomona from

relying on California’s consumer expectation test. Under California law, there are

two potential tests for proving a design defect—the consumer expectation test and

the risk-benefit test.

              Whether a plaintiff may proceed under the consumer
              expectation test or whether design defect must be
              assessed solely under the risk-benefit test is dependent
              upon the particular facts in each case. Because in many
              situations . . . the consumer . . . would have no idea how


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             safe the product could be made, the consumer
             expectation test is reserved for cases in which the
             everyday experience of the product’s users permits a
             conclusion that the product’s design violated minimum
             safety assumptions and is thus defective regardless of
             expert opinion about the merits of the design. . . .

             Some products cause injury in a way that does not
             engage its ordinary consumers’ reasonable minimum
             assumptions about safe performance. For example, the
             ordinary consumer of an automobile simply has no idea
             how it should perform in all foreseeable situations, or
             how safe it should be made against all foreseeable
             hazards. In those cases, where the plaintiff’s theory of
             defect seeks to examine the behavior of obscure
             components under complex circumstances outside the
             ordinary experience of the consumer, the consumer
             expectation test is inapplicable; and defect may only be
             proved by resort to the risk-benefit analysis.

McCabe v. American Honda Motor Co., Inc., 100 Cal. App. 4th 1111, 1121–22

(2002) (internal citations and quotation marks omitted) (emphasis in original).

      Here, the district court’s conclusion, that the impact of commercial use of

fertilizer more than fifty years ago was not part of the everyday experience of

ordinary consumers, did not constitute an abuse of discretion. Based on the

technical and scientific nature of the contamination at issue, and the “obscure

components under complex circumstances,” Pomona did not meet its burden of

showing entitlement to a consumer expectation test instruction. Id. at 1122.

      The district court did not abuse its discretion by precluding expert testimony


                                          3
about the feasibility of an alternative fertilizer. Pomona was not diligent in

designating an alternative design expert. Accordingly, there was not good cause to

reopen discovery, permit designation of Pomona’s proffered expert, and allow

expert testimony on the subject. See Johnson v. Mammoth Recreations, Inc., 975

F.2d 604, 609 (9th Cir. 1992).

      However, for the reasons stated in the concurrently filed opinion, the district

court’s judgement is VACATED and the case is REMANDED for a new trial.




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