                                                                             FILED
                             NOT FOR PUBLICATION                              NOV 20 2012

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




                             FOR THE NINTH CIRCUIT



JAVIER ALCALA,                                    No. 10-16164

               Plaintiff - Appellant,             D.C. No. 4:08-cv-04828-PJH

  v.
                                                  MEMORANDUM *
MONSANTO COMPANY,

               Defendant - Appellee.



                    Appeal from the United States District Court
                       for the Northern District of California
                    Phyllis J. Hamilton, District Judge, Presiding

                           Submitted November 13, 2012 **

Before:        CANBY, TROTT, and W. FLETCHER, Circuit Judges.

       Javier Alcala appeals pro se from the district court’s summary judgment in

his diversity action alleging strict products liability and negligence claims arising

from his occupational exposure to herbicides produced by Monsanto. We have




          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
jurisdiction under 28 U.S.C. § 1291. We review de novo. Primiano v. Cook, 598

F.3d 558, 563 (9th Cir. 2010). We vacate and remand.

      The district court granted summary judgment to Monsanto based on its

finding that Alcala failed to provide evidence establishing a link between his

injuries and Monsanto’s products. To the contrary, Alcala provided detailed

records establishing his workplace exposure to Monsanto’s products. Alcala

provided medical reports that establish a link between his symptoms and his

occupational exposure to herbicides, and there are specific references in some of

those medical reports to glyphosate, the active ingredient in Monsanto’s products.

Alcala also submitted evidence that his employer and the county agency did not

require a more protective filter on the spray truck that he used because Monsanto’s

labels did not require such protection for non-agricultural occupational exposure.

      In the circumstances of this case, where Alcala was proceeding pro se, it was

improper to grant summary judgment without providing sufficient notice of the

possible deficiencies in his evidence. If, under California case law, Alcala also

needed to designate expert testimony in order to raise a triable dispute as to

whether his exposure to Monsanto’s products was a substantial factor in causing

his medical problems, he should have been notified of the consequences of his

failure to designate an expert. See Waters v. Young, 100 F.3d 1437, 1441 (9th Cir.


                                           2                                     10-16164
1996) (“As a general matter, this court has long sought to ensure that pro se

litigants do not unwittingly fall victim to procedural requirements that they may,

with some assistance from the court, be able to satisfy”); see also Fed. R. Civ. P.

56(c)(1)(B) (a party asserting that a fact cannot be genuinely disputed must support

the assertion by “showing . . . that an adverse party cannot produce admissible

evidence to support the fact” (emphasis added)); Fed. R. Civ. P. 56(e)(1) (noting

that if a party fails to properly support an assertion of fact, “the court may [] give

an opportunity to properly support or address the fact”). Accordingly, we vacate

and remand with instructions to allow Alcala an opportunity to cure any technical

defects in his evidence. We recommend that the district court consider appointing

counsel to represent Alcala on remand.

      The appellee shall bear the costs on appeal.

      VACATED and REMANDED.




                                            3                                     10-16164
