                            NOT FOR PUBLICATION

                     UNITED STATES COURT OF APPEALS
                                                                            FILED
                            FOR THE NINTH CIRCUIT
                                                                             MAY 17 2016
                                                                         MOLLY C. DWYER, CLERK
                                                                           U.S. COURT OF APPEALS
DAVID MICHERY,                                    No. 13-57012

              Plaintiff - Appellant,              D.C. No. 2:12-cv-04957-RSWL-
                                                  FFM
 v.

FORD MOTOR COMPANY, a Delaware                    MEMORANDUM*
corporation,

              Defendant - Appellee.


                   Appeal from the United States District Court
                       for the Central District of California
                 Ronald S.W. Lew, Senior District Judge, Presiding

                       Argued and Submitted March 11, 2016
                               Pasadena, California

Before: CLIFTON, CALLAHAN, and IKUTA, Circuit Judges.

      Plaintiff-Appellant David Michery appeals the district court’s grant of

summary judgment in favor of Defendant-Appellee Ford Motor Corporation.

Michery alleges that Ford should be strictly liable for his personal injuries resulting

from an automobile collision because the 1999 Ford Expedition he was driving had


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
a design defect.1 We have jurisdiction under 28 U.S.C. § 1291. We vacate the

district court’s grant of summary judgment and remand.

      1.     We review a district court’s decision to grant summary judgment de

novo. Szajer v. City of L.A., 632 F.3d 607, 610 (9th Cir. 2011). We view facts in

the light most favorable to the non-moving party at summary judgment, and

resolve any discrepancies in favor of that party. See Matsushita Elec. Indus. Co. v.

Zenith Radio Corp., 475 U.S. 574, 586–88 (1986).

      2.     Under California law, there are “two alternative ways to prove a

design defect”: the consumer expectations test and the risk/benefit test. Soule v.

Gen. Motors Corp., 8 Cal. 4th 548, 566 (1994). “[T]he consumer expectations test

is reserved for cases in which the everyday experience of the products’ users

permits a conclusion that the product’s design violated minimum safety

assumptions, and is defective regardless of expert opinion about the merits of the

design.” Id. at 567 (italics omitted). “For example, the ordinary consumers of

modern automobiles may and do expect that such vehicles will be designed so as



      1
        We only address Michery’s design defect claim as he has waived any
appeal of the district court’s grant of summary judgment with respect to his
manufacturing defect claim and negligence claim. See Arpin v. Santa Clara Valley
Transp. Agency, 261 F.3d 912, 919 (9th Cir.2001) (“[I]ssues which are not
specifically and distinctly argued and raised in a party’s opening brief are
waived.”).
                                          2
not to explode while idling at stoplights, experience sudden steering or brake

failure as they leave the dealership, or roll over and catch fire in two-mile-per-hour

collisions.” Id. at 566 n.3.

      3.     The district court properly found that the consumer expectations test

did not apply to Michery’s design defect claim. The California Supreme Court

held in Soule that “ordinary experience and understanding [does not] inform such a

consumer how safely an automobile’s design should perform under the esoteric

circumstances of the collision” that involved the “precise behavior of several

obscure components of her car under the complex circumstances of a particular

accident.” Id. Similarly, here, Michery was in an automobile accident when he

swerved the 1999 Ford Expedition that he was driving into a roadway median and

sideswiped a palm tree. The collision report prepared by the California Highway

Patrol (CHP) noted that the vehicle had sustained “major damage” including

damage to the left light assembly, the left driver door, the left front fender, the

driver side floorboard, and left side of the hood. Additionally, the door had been

torn off, the top of the vehicle had been smashed, the windshield had been

shattered, and both the driver and passenger airbags had deployed. Michery

brought suit alleging that the vehicle’s “structural components,” and its “interior

configuration and components” failed to provide adequate crash protection.


                                            3
      In opposing summary judgment, Michery offered the expert opinion of Dr.

Anil Khadilkar, a mechanical and automotive engineer. Dr. Khadilkar elaborated

that “[e]xcessive driver compartment deformations were observed in the photos of

the Expedition taken at the scene.” The dislodged left front fender, the left front

tire/rim, and the driver door, led to a “compromised and weakened structural

integrity of the driver compartment,” including changes to the supportive pillars by

the car’s door, a kink in the roof, and the driver’s seat had pushed forward.

Additionally, the floor board came through the toe board as the left fender and left

tire/rim were dislodged. Like Soule, ordinary experience and understanding would

not inform a consumer how safely an automobile design should perform under

these circumstances of the collision that involved the “precise behavior of several

obscure components of her car under the complex circumstances of a particular

accident.” The district court correctly found that the consumer expectations test

did not apply to Michery’s design defect claim.

      4.     Although the district court properly found that the risk/benefit test

applied to Michery’s design defect claim, it erred by finding that Michery had not

raised genuine issues of material fact. Under the risk/benefit test, “a product is still

defective if its design embodies excessive preventable danger, that is, unless the

benefits of the design outweigh the risk of danger inherent in such design.” Soule,


                                           4
8 Cal. 4th at 567 (citations, alterations, and quotation marks omitted). “Once the

plaintiff has made a prima facie showing that his or her injury was caused by the

product’s defective design, the burden shifts to the defendant to establish that, in

light of the relevant factors, the product is not defective.” Pannu v. Land Rover

North America, Inc., 191 Cal. App. 4th 1298, 1313–14 (2011) (citing Barker v.

Lull Engineering Co., 573 P.2d 443 (Cal. 1978)); see also Soule, 8 Cal. 4th at 571

n. 8 (“[P]lacement of the risk-benefit burden on the manufacturer is appropriate

because the considerations which influenced the design of its product are

peculiarly within its knowledge.” (quotation marks and alterations omitted)).

      Here, Michery has made a prima facie showing that his injuries were caused

by the defective design of the Ford Expedition sufficient to withstand summary

judgment. Michery’s expert opined that “[t]he excessive driver compartment

deformation/crush, namely, floor crust, roof crush, A-pillar, B-pillar, and seat crust

and attendant movements resulted in entrapment of Mr. Michery’s left lower

extremity and the resulting forces were the direct cause of his femoral and tibial

fractures.” Furthermore, the CHP report, photographs, medical records, witness

statements and testimony are probative to his contention that the weaknesses in the

Expedition’s structure as designed caused his injuries. Additionally, the crash tests

of other vehicles are probative of the likelihood that such damage was caused by


                                           5
the design of the vehicle at issue here. Dr. Khadilkar compared the accident to an

accident reconstruction of a Ford F-150 truck. Although the vehicles are different,

Dr. Khadilkar stated that the vehicles have “common parts” including the pillars,

the floor, the fender, the suspension and attachments, that were “exactly the parts

that were either excessively damaged or dislodged” during Michery’s accident.

Dr. Khadilkar also considered four crash tests conducted by the National Highway

Traffic Safety Administration involving 1999 Ford Expeditions, the same make

and model as the vehicle that Michery was driving.2 Reviewing all of the evidence,

we hold Michery presented genuine issues of fact that the Expedition’s design

caused his injuries. We express no opinion as to the merits of Michery’s claims.

      5.     The district court also erred in discarding Dr. Khadilkar’s expert

declaration based on Triton Energy Corp. v. Square D Co., 68 F.3d 1216 (9th Cir.



      2
        See Vehicle Crash Test Database, National Highway Traffic Safety
Administration, http://www-nrd.nhtsa.dot.gov/database/VSR/veh/
QueryVehicle.aspx (select “Ford”; select “Expedition”; enter “1999” for vehicle
model year; click “submit”) (last visited April 11, 2016). We grant Michery’s
motion for judicial notice (Dkt. Nos. 16–17), of the National Highway Traffic
Safety Administration’s four crash tests on 1999 Ford Expeditions, which are
publicly available on the NHTSA’s government website. Although we take
judicial notice of the existence of these documents, we express no opinion on the
truth of their underlying content. However, we deny Michery’s motion to
supplement the record with the ambulance services report of the accident. Michery
has failed to provide any persuasive justification as to why we should consider
evidence that he failed to present to the district court.
                                          6
1996). The Triton plaintiffs brought suit against the manufacturer of a circuit

breaker that had allegedly malfunctioned and started a destructive fire in an aircraft

hangar. Before it could be examined by experts from either side, the circuit

breaker was destroyed due to a miscommunication. Id. at 1219. As a result, the

sole evidence that was available regarding the missing circuit breaker “essentially

consisted of opposing expert opinion.” Id. The district court dismissed plaintiffs’

claim for failure to show a genuine dispute of material fact. Id. at 1220.

      On appeal, we affirmed the dismissal. Applying Nevada law, we reasoned

that “[a] jury should not be asked to evaluate the credibility of experts concerning

the defectiveness of a circuit breaker and its container when it left the hands of [the

manufacturer], which the experts have neither seen nor can see, and which was

manufactured more than two decades ago.” Id. at 1222. The plaintiff’s expert’s

inability to examine the circuit breaker “substantially impaired his ability to

express a reliable expert opinion based upon specific facts,” and we concluded that

his opinion was “not of sufficient quantum or quality to create genuine issues of

material fact.” Id.

      However, California law permits a plaintiff to prove a design defect through

circumstantial evidence, “even when the accident itself precludes identification of

the specific defect at fault.” Hinckley v. La Mesa R.V. Center, Inc., 158 Cal. App.


                                           7
3d 630, 642 (1984). Unlike in Triton, where the plaintiff alleged a defect in a

particular circuit breaker that had been destroyed, Michery alleges a defect in the

design of all 1999 Ford Expeditions. That Michery’s particular Expedition has

been destroyed therefore does not necessarily prevent him from establishing a

genuine issue of material fact as to a design defect. Moreover, Michery’s expert,

Dr. Khadilkar, relies upon a much greater quantum and quality of evidence than

the experts in Triton. He reviewed numerous photographs of the accident, the CHP

report, medical records, witness statements and testimony, the crash test video

showing a Ford F-150, and National Highway Traffic Safety Administration crash

tests involving 1999 Ford Expeditions. Although the actual Ford Expedition was

destroyed before it could be inspected, the remaining evidence does not consist

solely of speculative expert opinion. Dr. Khadilkar’s declaration may be

considered on remand.

      In sum, we hold that there are genuine issues of material fact as to Michery’s

defective design defect claim under the risk/benefit test. We vacate summary

judgment and remand to the district court for further proceedings. We express no

opinion as to the merits of Michery’s claims.

      Costs awarded to Plaintiff-Appellant.

VACATED and REMANDED.


                                          8
                                                                               FILED
No. 13-57012, Michery v. Ford Motor Co.
                                                                               MAY 17 2016
CLIFTON, Circuit Judge, concurring in part and dissenting in part:          MOLLY C. DWYER, CLERK
                                                                             U.S. COURT OF APPEALS


       I agree with the majority that the district court properly held that the

consumer expectations test did not apply to Michery’s design defect claim. I also

agree that the district court properly held that the risk/benefit test did apply. I do

not agree, however, that Michery presented evidence sufficient to raise a genuine

dispute of material fact under the risk/benefit test. I respectfully dissent as to that

element of the disposition and would affirm the summary judgment entered by the

district court.

       Michery’s claim cannot survive summary judgment unless he can point to

enough evidence for a jury to return a verdict in his favor. Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 249 (1986). “If the evidence is merely colorable, or is

not significantly probative, summary judgment may be granted.” Id.

       Much of the evidence Michery presented before the district court simply did

not demonstrate the circumstances he sought to prove, which was that the

Expedition’s driver’s-side floor space and side rails collapsed inward in the

accident and led to his injuries. The witness testimony described only the

conditions leading to the accident and the accident itself, and the hospital records

noted that Michery fractured his left leg in two places, but did not provide

information as to how. While the collision report noted that there had been major
damage to the front left side of the car and “[d]river side floorboard intrusion,” it

provided few specifics. Only three photographs were taken of the car’s interior at

the crash site, and the floor was covered by a mat in the only photograph taken at

an angle that could potentially have revealed damage to the floorboard.

      Dr. Khadilkar’s testimony was not sufficient to save Michery’s case. While I

agree with the majority that the district court erred when it declined to consider Dr.

Khadilkar’s declaration altogether, his conclusions were only as valid as the

underlying evidence, none of which was significantly probative. For instance, Dr.

Khadilkar’s descriptions of the damage to the Expedition were purportedly based

on the accident scene photographs, but those photographs did not always reflect his

description. For example, he described a “rearward inward push at the floor board

coming through the toe board” of the damaged Expedition, but the floorboard was

obscured by a mat in the only photograph available. The only crash test Dr.

Khadilkar reported relying on involved a different vehicle (a Ford F-150 pickup

truck instead of an Expedition SUV), in a different type of crash (head-on instead

of angled), moving at a different speed. Although he alluded to having considered

four crash tests conducted on 1999 Ford Expedition vehicles like the one Michery

was driving, he did not suggest that those crash tests had influenced his analysis

and did not explain their relevance.

                                           2
      A lack of reasoning pervaded Dr. Khadilkar’s conclusions. In effect, his

declaration amounted to nothing more than an assertion that he was an expert and a

proclaimed conclusion that the damage was “excessive” and that the risk of the

design outweighed the benefits, without further explanation. The vehicle in

question was from model year 1999, and there were likely thousands of that model

sold. Dr. Khadilkar had reason for not being able to inspect the specific vehicle

involved in the crash, but, save his cursory reference to the existence of crash tests,

he did not refer to any inspection by him or by anyone else of any other 1999

Expedition, either. Nor did he identify any other accidents or incidents involving

that model vehicle, even though it had been available and on the market for more

than a decade. More should have been required to provide credible proof upon

which a reasonable jury could rely to support a conclusion that the design of the

1999 Expedition was defective under the risk/benefit test.

      Because it is clear to me that Michery did not provide enough evidence for a

jury to return a verdict in his favor, I would affirm the district court’s grant of

summary judgment.




                                            3
