Bobacher v. Wacker USA Corp.

110 F. App'x 842

• Court: Court of Appeals for the Ninth Circuit
• Decided: October 14, 2004
• Docket: No. 03-15752
• Status: Published

Opinion

MEMORANDUM

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Bobacher challenges the district court’s exclusion of his expert witness on reliability grounds and grant of summary judgment on all of his claims, including his failure to warn claim.

Under General Elec. Co. v. Joiner, 522 U.S. 136, 139, 118 S.Ct. 512, 139 L.Ed.2d 508 (1997), we review the district court’s reliability determination for the proposed admission of scientific or technical evidence under Federal Rule of Evidence 702 for abuse of discretion. Bobacher argues that the district court erred in finding that his technical expert’s failure to perform any tests on the Wacker saw or to produce any published tests on the fastening systems renders the expert’s proffered testimony unreliable. The factors outlined in Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), “do not constitute a definitive checklist or test.” Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 150, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999) (internal quotations omitted). The district court has “broad latitude when it decides how to determine reliability,” id. at 142, 119 S.Ct. 1167, and the district court’s consideration of indicia of reliability was not an abuse of discretion.

Summary judgment was proper on Bobacher’s failure to warn claim. The Supreme Court has held that a “plaintiff must present affirmative evidence in order to defeat a properly supported motion for summary judgment ... even where the evidence is likely to be within the possession of the defendant.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Although Bobacher’s counsel did not waive his failure to warn claim in her letter to opposing counsel, Bobacher presented no affirmative evidence and failed to articulate any material factual dispute that would defeat the motion for summary judgment.

AFFIRMED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.