                                                                              FILED
                            NOT FOR PUBLICATION                               SEP 05 2012

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



                            FOR THE NINTH CIRCUIT


LARRY I. NEWKIRK; RUTH A.                        No. 10-35667
NEWKIRK,
                                                 D.C. No. 2:08-cv-00273-RMP
              Plaintiffs,

  and                                            MEMORANDUM*

DAVID EGILMAN,

              Witness - Appellant,

  v.

CONAGRA FOODS INC., a Delaware
corporation; CHR HANSEN INC.,

              Defendants - Appellees.


                  Appeal from the United States District Court
                     for the Eastern District of Washington
             Rosanna Malouf Peterson, Chief District Judge, Presiding

                            Submitted August 30, 2012**
                               Seattle, Washington


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Before: SCHROEDER and GOULD, Circuit Judges, and FRIEDMAN, Senior
District Judge.***

       Appellant, Dr. David Egilman, was a proposed expert witness for plaintiffs

Larry and Ruth Newkirk in a toxic tort action against ConAgra and Chr. Hansen,

Inc. (“Defendants”). Defendants filed joint motions to exclude Dr. Egilman’s

testimony. The district court granted the motions and also entered summary

judgment for Defendants. Egilman appeals the exclusion of his testimony,

claiming that the district court abused its discretion by using defamatory language

in its order.

       We have allowed nonparty appellate standing “only when (1) the appellant,

though not a party, participated in the district court proceedings, and (2) the

equities of the case weigh in favor of hearing the appeal.” Hilao v. Estate of

Marcos, 393 F.3d 987, 992 (9th Cir. 2004) (quoting S. Cal. Edison Co. v. Lynch,

307 F.3d 794, 804 (9th Cir. 2002)). Appellant’s participation in the district court

consisted of filing reports in his capacity as an expert. His participation was not

akin to party participation. He did not file papers objecting to the order excluding

his testimony. He did not argue the legal merits of the motion to exclude his




        ***
             The Honorable Paul L. Friedman, Senior District Judge for the U.S.
District Court for the District of Columbia, sitting by designation.
                                           2
testimony. See, e.g., Commodity Futures Trading Comm’n v. Topworth Int’l, Ltd.,

205 F.3d 1107, 1113–14 (9th Cir. 1999).

      Egilman did not satisfy the first element that we said in Hilao was important

for nonparty appellate standing. Nor do we see any other reason here to depart

from the general rule that only a party to a proceeding who receives an adverse

ruling may appeal. We conclude that Egilman does not have standing to appeal the

district court’s order, that we lack jurisdiction, and that this appeal should be

dismissed.

      DISMISSED.




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