                                                                           FILED
                           NOT FOR PUBLICATION                              MAY 17 2010

                                                                       MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



ANDREW W. SHALABY; SONIA                         No. 09-56331
DUNN-RUIZ,
                                                 D.C. No. 3:07-cv-02107-MMA-
             Plaintiffs - Appellants,            BLM

  v.
                                                 MEMORANDUM *
NEWELL RUBBERMAID, INC.; THE
HOME DEPOT, INC.; IRWIN
INDUSTRIAL TOOL COMPANY, INC.;
BERNZOMATIC,

             Defendants-cross-claimants -
Appellees,

  and

WESTERN INDUSTRIES, INC.;
WORTHINGTON INDUSTRIES,

             Cross-defendants - Appellees,




                    Appeal from the United States District Court
                       for the Southern District of California
                    Michael M. Anello, District Judge, Presiding



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                         Argued and Submitted April 7, 2010
                                Pasadena, California

Before: FRIEDMAN,** D.W. NELSON, and REINHARDT, Circuit Judges.

      This is a diversity products liability case under California law that the

appellants, Andrew W. Shalaby, and his wife, Sonia Dunn-Ruiz, filed for injuries

he sustained when a handheld, gas-powered torch that he had purchased from a

Home Depot store exploded. The district court granted summary judgment for the

defendants, and we affirm.

      To establish a prima facie case of products liability, California law requires:

             [S]ubstantial evidence establishing both the defect and
             causation (a substantial probability that the design defect,
             and not something else, caused the plaintiff’s injury) and
             where . . . the complexity of the causation issue is beyond
             common experience, expert testimony is required to
             establish causation.

Stephen v. Ford Motor Co., 134 Cal. App. 4th 1363, 1373 (Cal. Ct. App. 2005).

      1. Determining the cause of the explosion here required exploration and

evaluation of complex facts and theory “beyond common experience.” It presented

questions of physics, metallurgy, and engineering related to the construction,

composition, design and operation of a handheld torch attached to a gas cylinder.




** The Honorable Daniel M. Friedman, United States Circuit Judge for the Federal
Circuit, sitting by designation.

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The district court properly recognized that the plaintiffs therefore were required to

present expert testimony on these issues to establish a prima facie case.

      2. The district court did not abuse its discretion in excluding the testimony

of the plaintiffs’ two expert witnesses. The experts’ proposed testimony was

developed in pretrial proceedings, and the district court discussed it in detail in its

opinion. The trial court has broad discretion to admit or reject expert testimony to

“ensure that any and all scientific testimony or evidence admitted is not only

relevant, but reliable.” Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 589,

592–93 (1993).

      The court excluded the testimony of one of those witnesses, Dr. Anderson, a

metallurgy expert, as unreliable and irrelevant. To support his theory that a design

defect in the torch caused the explosion, Dr. Anderson conducted two tests on

exemplar torches to demonstrate the flaw. The district court concluded that

because Dr. Anderson had performed only two non-standardized tests, on torches

that may have been different from the one here at issue, and did not adequately

explain the results of or discuss the possible rate of error for such tests, his

testimony would be unreliable. It would also be unreliable because he did not

address certain contradictory evidence. Finally, he did not present adequate




                                            3
evidence that the design flaw caused Shalaby’s injuries, rendering his testimony

irrelevant.

       The district court excluded the testimony of the other witness, Dr.

Vredenburgh, because she was not a qualified expert and, even if she were, her

testimony was unreliable and irrelevant. Dr. Vredenburgh’s field of expertise was

not torches; she had some experience in the formulation of warning instructions for

various devices. When asked whether a different or larger warning would have

helped in Shalaby’s case, Dr. Vredenbugh testified that “I don’t know why [the

torch] failed, so I don’t know that a warning would have helped.” She stated that

she had never operated a handheld torch and had not seen one operated in

seventeen years. She had not spoken to any users of handheld torches in many

years, and she had incorrectly testified about how such a torch is used. Dr.

Vredenburgh admitted that she did not collect any empirical data, did not conduct

any testing, did not conduct any surveys, did not seek data from manufacturers, did

not review any peer-reviewed literature, did not conduct any other kind of research

prior to forming her opinion, and did not follow her own typical process for

developing product warnings.




                                          4
      The district court’s exclusion of these two witnesses’ testimony meant that

the plaintiffs had not presented the “expert testimony . . . required to establish

causation.” Stephen, 134 Cal App. 4th at 1373. The district court correctly applied

California law in concluding that the plaintiffs had not established a prima facie

case, and the court therefore properly granted summary judgment for the

defendants.

      3. We have considered but find unpersuasive the various other arguments

the appellants make against the district court’s decision. Those contentions need

not be discussed.

AFFIRMED.




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