                              NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS
                                                                           FILED
                              FOR THE NINTH CIRCUIT
                                                                            JUL 25 2017
                                                                        MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS
BENSON TOWER CONDOMINIUM                         No.   15-35119
OWNERS ASSOCIATION, an Oregon
nonprofit corporation,                           D.C. No. 3:13-cv-01010-SI

              Plaintiff-Appellee,
                                                 MEMORANDUM*
 v.

VICTAULIC COMPANY, a foreign
corporation,

              Defendant-Appellant.


                    Appeal from the United States District Court
                             for the District of Oregon
                    Michael H. Simon, District Judge, Presiding

                        Argued and Submitted July 11, 2017
                                Portland, Oregon

Before: BERZON, WATFORD, and OWENS, Circuit Judges.

      Defendant-Appellant Victaulic Co. (Victaulic) appeals from the district

court’s denial of its renewed motion for judgment as a matter of law and its motion

for a new trial. We affirm.


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
1.    A jury verdict may be reversed for lack of substantial evidence only if the

evidence “permits only one reasonable conclusion, and that conclusion is contrary

to the jury’s verdict.” Pavao v. Pagay, 307 F.3d 915, 918 (9th Cir. 2002). Here,

substantial evidence supported the jury’s determination that Victaulic’s defective

products caused damage to Benson Tower Condominium Owners Association’s

(Benson) potable water supply, which is property separate from the defective

valves and couplings.

      Under Oregon law, a seller is liable for “damage to property” caused by a

product sold “in a defective condition unreasonably dangerous to the user . . . or to

the property of the user.” Or. Rev. Stat. § 30.920. Benson provided substantial

evidence showing that Victaulic’s plumbing products caused damage to its potable

water supply. Residents of Benson Tower and contractors and staff testified to the

presence of black particles throughout the building, from the hot water storage

tanks to the kitchen sinks and dishwashers inside the condominium units. Various

witnesses noted the similarities between the black, rubbery particles and

Victaulic’s corroded valves and couplings. Multiple experts opined that the black

particles were ethylene propylene diene monomer (EPDM) from Victaulic’s valves

and couplings that had prematurely degraded after contact with chloramine, a

chemical commonly added to municipal water supplies. Victaulic’s EPDM was


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“improperly formulated” and “significantly poorer” than the materials of

competitors. The degraded byproduct of chloramine and EPDM likely included

“carbon black,” which several experts noted was a potential carcinogen.

      Oregon case law does not require “significant damage” to state a colorable

claim under Oregon products liability law. The text of the statute refers simply to

“damage to property.” Or. Rev. Stat. § 30.920. Russell v. Deere & Co., 186 Or.

App. 78 (2003), does not hold to the contrary. Although that case alluded to

“significant physical injury” to a product as sufficient for a products liability claim,

the issue before the court there was whether the defective combine harvester in

question was unreasonably dangerous under the statute.1 Id. at 84-85. Other

Oregon cases interpreting the products liability statute make no mention of any

requirement that the damage caused by an unreasonably dangerous product be

“significant.” See Harris v. Suniga, 209 Or. App. 410, 421 (2006); Gladhart v. Or.

Vineyard Supply Co., 164 Or. App. 438, 450-54 (1999).

      Victaulic’s attempt to re-cast the damaged property—the potable water

system and the water flowing through it—as part of an integrated “plumbing

system” that includes the defective valves and couplings is no more successful.



      1
       Victaulic is not independently appealing the determination that its
plumbing products were unreasonably dangerous.
                                           3
Here the “other property” damaged is the water supply. See City of Pomona v.

SQM N. Am. Corp., 750 F.3d 1036, 1050 (9th Cir. 2014) (contamination of

groundwater supply is damage to property). Describing everything involved in the

delivery of water to Benson residents at a high level of generality as a “system”

does not make the water supply itself—the damaged property—the same product

as Benson’s defective valves and couplings. The evidence at trial supports the

finding that Victaulic’s parts damaged “other property,” namely the potable water

at Benson Tower.2

      The jury heard substantial evidence showing that the defective plumbing

components degraded prematurely and leached possible carcinogens into Benson’s

potable water supply. This evidence is sufficient to support the verdict.

2.    Victaulic waived the argument that the district court abused its discretion in

admitting evidence concerning possible health issues relating to the degradation of

the synthetic rubber in Victaulic’s products. When Benson at trial adduced

testimony or argued that “carbon black,” a byproduct of degraded EPDM, is a

possible carcinogen, Victaulic failed to object on the basis of undue prejudice.


      2
        Victaulic’s reliance on the Restatement (Second) of Torts, incorporated in
Oregon law, see Or. Rev. Stat § 30.920(3), is misplaced. Unlike a carbonated
beverage and the bottle it comes in, plumbing valves and potable water are not an
“integrated whole” packaged and sold together that may appropriately be
considered a single product. Restatement (Second) of Torts § 402A cmt. h (1965).
                                          4
Victaulic’s pre-trial motions for exclusion of this evidence were insufficient to

preserve the objection. Absent contemporaneous objection, a party may rest on its

pre-trial motion to preserve an evidentiary objection only if the court makes a

“thorough examination of the objection,” followed by an “explicit and definitive”

ruling on it. United States v. Archdale, 229 F.3d 861, 864-65 (9th Cir. 2000).

Here, far from being explicit or definitive, the district court ruled that it would

allow “appropriate expert testimony” on health concerns relating to the black

particles but would “consider any additional specific objections at trial.” Lacking

an “explicit and definitive” ruling on its objection, Victaulic failed to preserve it at

trial. See McCollough v. Johnson, Rodenburg & Lauinger, LLC, 637 F.3d 939,

954 (9th Cir. 2011) (trial court’s denial of a motion “with leave to renew any

objections at trial” was not an explicit and definitive ruling and did not preserve

the defendant’s evidentiary objection).

      Alternatively, even if the objection had not been waived, there was no abuse

of discretion in admitting the evidence. Expert testimony about the health risks of

carbon black was pertinent to establishing that Victaulic’s products contaminated

Benson’s potable water system and thus damaged its property. The health-related

evidence thus “logically advance[d] a material aspect” of Benson’s case and met

the “low” bar for relevance. Messick v. Novartis Pharm. Corp., 747 F.3d 1193,


                                            5
1196 (9th Cir. 2014) (citing Daubert v. Merrell Dow Pharm., Inc., 43 F.3d 1311,

1315 (9th Cir. 1995)).

      Victaulic’s undue prejudice arguments, if not waived, do not succeed.

Given the relevance of the health-related evidence, the district court did not abuse

its discretion in finding that its probative value was not substantially outweighed

by the danger of unfair prejudice. See Fed. R. Evid. 403. There was no error, plain

or otherwise, in the admission of this evidence.

3.    Nor did the district court abuse its discretion in admitting evidence of black

particles in other buildings in Portland. At trial, Benson’s witness testified he had

observed black particles in each of the 29 other buildings in Portland with

Victaulic plumbing components that he had visited, but not in any building he had

visited with non-Victaulic parts. Victaulic argues that Benson needed to prove that

the plumbing systems in these other buildings were “substantially similar” to

Benson Tower’s plumbing for that evidence to be relevant to Benson’s claims.

Cooper v. Firestone Tire and Rubber Co., 945 F.2d 1103, 1105 (9th Cir. 1991).

But Cooper is clear that other products need to be substantially similar only when

the plaintiff is using evidence relating to them as “direct proof of negligence, a

design defect, or notice of the defect.” Id. (emphasis added).




                                           6
      Benson did not introduce the evidence of black particles in other buildings

as “direct proof” that Victaulic’s valves and couplings had degraded and leached

into Benson’s water supply. Rather, Benson put on this evidence to rebut

Victaulic’s theory that the black particles came from degrading elastomers in

Portland’s municipal water pipes rather than from Victaulic’s products. The

evidence was relevant to, and probative of, whether the black particles came from

an external source rather than the valves and couplings in Benson Tower.

Victaulic was aware that it could “open the door” to such evidence by suggesting

that the black particles came from a source other than its products, and it did so

during cross-examination of one of Benson’s experts. Because the evidence was

not used as direct proof of Victaulic’s negligence or a defect in its products, its

admission was not error. See Cooper, 945 F.2d at 1105 (evidence relating to

dissimilar accidents was not erroneously admitted because it was used for

impeachment rather than as direct proof of the plaintiff’s claim).

      Finally, even if the district court erred in admitting the “other buildings”

evidence, the error was harmless. Sifting out the evidence related to other

buildings, Benson has shown that “it is more probable than not that the jury would

have reached the same verdict even if the evidence had not been admitted.” Estate

of Barabin v. AstenJohnson, Inc., 740 F.3d 457, 465 (9th Cir. 2014) (en banc)


                                           7
(citation and internal quotations omitted). Several witnesses testified about the

degradation of Victaulic’s products, the potential dangers of this degradation, and

the damage to Benson’s potable water supply. Given this evidence, it is unlikely

the jury would have decided otherwise if the other buildings evidence had been

excluded from trial.

      AFFIRMED.




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