                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        JUL 8 2019
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

RODERICK WISE,                                  No.    18-15328

                Plaintiff-Appellant,            D.C. No. 2:15-cv-01219-GWF

 v.
                                                MEMORANDUM*
SOUTHERN TIER EXPRESS, INC.,

                Defendant-Appellee.

                   Appeal from the United States District Court
                            for the District of Nevada
                 George W. Foley, Jr., Magistrate Judge, Presiding

                             Submitted June 6, 2019**
                                Portland, Oregon

Before: MURGUIA and HURWITZ, Circuit Judges, and GAITAN,*** District
Judge.

      Rodrick Wise (“Wise”) sued Southern Tier Express, Inc. (“Southern Tier”),

claiming that he was injured when a truck driven by a Southern Tier driver struck


      *
             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).
      ***
            The Honorable Fernando J. Gaitan, Jr., United States District Judge
for the Western District of Missouri, sitting by designation.
Wise’s parked truck. Wise appeals the district court’s judgment, following a six-

day jury trial, in favor of Southern Tier, challenging (1) the district court’s

rejection of a Batson objection, (2) certain jury instructions, and (3) several

evidentiary rulings. We affirm.

      1.     Wise claims the district court erred in allowing the peremptory strike

of the only African-American venireperson, B.H. See Batson v. Kentucky, 476

U.S. 79 (1986). When a party makes a Batson challenge, the district court must

engage in a three-step inquiry: (1) the challenging party must establish a prima

facie case of discrimination; (2) the striking party then must articulate a neutral,

nondiscriminatory reason for the peremptory strike; and (3) the court must

determine whether the challenging party has shown that the reason was pretextual

and the actual motive was purposeful discrimination. Id. at 96-98; Purkett v. Elem,

514 U.S. 765, 767 (1995). The district court’s determinations are reviewed for

clear error. United States v. Vasquez–Lopez, 22 F.3d 900, 901 (9th Cir. 1994);

United States v. Mikhel, 889 F.3d 1003, 1028 (9th Cir. 2018).

      Wise met his prima facie burden. Southern Tier then articulated a neutral

nondiscriminatory reason for the strike, noting that B.H.’s son had been paralyzed

from the neck down in an accident and some of the injuries shared characteristics

with the injuries claimed by Wise. The district court found that Wise did not meet

his burden of proving that Southern Tier’s reason was pretextual. Wise challenges


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that finding on appeal. But, in rejecting the Batson challenge, the district court

correctly observed that the injuries suffered by B.H.’s son were much more serious

than those suffered by other members of the jury panel, and the injuries had a more

significant effect on B.H. See United States v. Collins, 551 F.3d 914, 921-22 (9th

Cir. 2009). We find no clear error in the district court’s conclusion that the

proffered non-discriminatory reason for the peremptory challenge was not

pretextual.

      2.      Wise also asserts the district court erred in instructing the jury on

proximate cause and medical causation.

      The district court gave the following jury instruction on proximate cause,

taken from Nevada Jury Instruction 4NG.13:

              When I use the expression “proximate cause,” I mean
              any cause which, in natural and continuous sequence,
              unbroken by any efficient intervening cause, produces
              the injury complained of and without which the result
              would not have occurred.

The instruction used by the district court sets out the proper legal definition of

proximate cause under Nevada law. Taylor v. Silva, 615 P.2d 970 (Nev. 1980).

Where a jury instruction correctly states the law, we review the precise formulation

of those instructions for abuse of discretion. White v. Ford Motor Co., 312 F.3d

998, 1012 (9th Cir. 2002). Although the district court omitted two optional

sentences from the proposed instruction, the instruction still properly conveyed the


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law and the parties’ theories of the case. The district court thus did not abuse its

discretion in its formulation of the instruction. Id.

      The district court also refused to give Wise’s proposed medical causation

instructions. The district court indicated these instructions regarding expert

opinions were unnecessary because Southern Tier’s theory of the case was that the

accident was a low-impact collision, which could be supported by lay opinion

evidence under Nevada law. Rish v. Simao, 368 P.3d 1203, 1208 (Nev. 2016).

The district court did not abuse its discretion in omitting Wise’s proposed

instructions.

      3.        Wise claims the district court made certain erroneous evidentiary

rulings. We review those rulings for abuse of discretion, Tennison v. Circus

Circus Enters., Inc., 244 F.3d 684, 688 (9th Cir. 2001), and find none.

      Wise argues that Southern Tier violated the court’s in limine order by raising

biomechanical issues in its closing argument, when counsel contended that the

accident occurred at “walking speed” and involved a “minor, minimal impact.”

However, these comments are not biomechanical issues; instead, they are fair

commentary on lay opinion evidence. See Rish, 368 P.3d at 1208.

      Wise further claims that Southern Tier violated the district court’s order on

his Motion in Limine No. 2. However, the district court denied that motion.

Moreover, the proffered evidence was relevant to Wise’s failure to disclose the


                                            4
identity of his employers at the time of his accidents and back injuries in 2011 and

2012.

        Wise also claims Southern Tier violated the district court’s order on Motion

in Limine No. 4, which precluded evidence of two prior injuries: (1) a finger

injury from the 1980s, and (2) a knee injury from 2009. However, Wise’s counsel

elicited testimony on direct examination regarding Wise’s college football career

and his related finger injury. Moreover, Wise’s knee injury was never mentioned to

the jury.

        Finally, Wise argues that Southern Tier’s counsel created a false narrative

about Wise being disappointed that his worker’s compensation claim could not be

extended due to the revelation of a degenerative back disease. No prior orders of

the district court prohibited this line of questioning; instead, a pretrial order

precluded Wise from denying the existence of prior back injuries and treatment

(including his worker’s compensation records) as a discovery sanction. We find no

abuse of discretion here.

        AFFIRMED.




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