NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 15 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
CLINTON O. MARSHALL, No. 22-35899
Plaintiff-Appellant, D.C. No. 3:20-cv-01899-MO
v. MEMORANDUM* RS 2018 FLOAT, LLC; GREENBRIER CENTRAL, LLC,
Defendants-Appellees,
and
WELLS FARGO RAIL CORPORATION; ACF INDUSTRIES, LLC; WYOMING COLORADO RAILROAD, INC., DBA Oregon Eastern Railroad; AMERICAN RAILCAR LEASING, LLC; SMBC RAILCAR SERVICES, LLC; BNSF RAILWAY COMPANY; UNION PACIFIC RAILROAD COMPANY; AMERICAN RAILCAR INDUSTRIES; AMERICAN INDUSTRIAL TRANSPORT; THE GREENBRIER COMPANIES, INC.,
Defendants.
Appeal from the United States District Court for the District of Oregon Michael W. Mosman, District Judge, Presiding
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Argued and Submitted December 7, 2023 Portland, Oregon
Before: NGUYEN and MILLER, Circuit Judges, and MONTALVO,** District Judge.
Clinton O. Marshall, an employee of EP Minerals, Inc., was injured while
working on a pressurized railcar manufactured by Greenbrier Central LLC
(Greenbrier) and owned and leased by RS 2018 Float, LLC (Float). In this
diversity action, Marshall brought claims against Float and Greenbrier under
Oregon law. The district court excluded certain expert testimony proffered by
Marshall and then granted summary judgment to the defendants on all claims.
Marshall appeals. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
We review a district court’s ruling on the admissibility of expert testimony
for abuse of discretion. Messick v. Novartis Pharms. Corp., 747 F.3d 1193, 1196
(9th Cir. 2014). We review a district court’s grant of summary judgment de novo.
Primiano v. Cook, 598 F.3d 558, 563 (9th Cir. 2010). Summary judgment is
appropriate only when “there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Washinton Mut. Inc. v. United
States, 636 F.3d 1207, 1216 (9th Cir. 2011) (quoting Fed. R. Civ. P. 56(a)).
** The Honorable Frank Montalvo, United States District Judge for the Western District of Texas, sitting by designation.
2 1. Marshall argues that the district court improperly excluded parts of his
experts’ testimony on railcar design, modifications, and loading practices. Under
Federal Rule of Evidence 702, a district court must determine “whether the expert
witness is qualified and has specialized knowledge that will ‘assist the trier of fact
to understand the evidence or to determine a fact in issue.’” McKendall v. Crown
Control Corp., 122 F.3d 803, 805 (9th Cir. 1997) (quoting Fed. R. Evid. 702),
overruled on other grounds by White v. Ford Motor Co., 312 F.3d 998, 1007 (9th
Cir. 2002); see Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 591 (1993).
The touchstone of this inquiry is reliability. Daubert, 509 U.S. at 590 & n.9.
Ultimately, the test of reliability is “flexible,” id. at 594, and a district court is
given wide latitude in deciding both how to determine reliability and in making the
reliability determination itself. See Kumho Tire Co., Ltd. v. Carmichael, 526 U.S.
137, 152 (1999).
Marshall correctly observes that there is “no requirement that an expert be a
specialist in a given field,” Doe v. Cutter Biological, Inc., 971 F.2d 375, 385 (9th
Cir. 1992), and that any “lack of particularized expertise goes to the weight
accorded [an expert’s] testimony, not to the admissibility of her opinion as an
expert,” United States v. Garcia, 7 F.3d 885, 890 (9th Cir. 1993). To the extent that
the district court’s order may be construed as resting on the experts’ lack of
particularized expertise with railcars, we do not endorse its analysis.
3 As the district court noted, however, Marshall’s experts did not explain the
basis for their opinions regarding the foreseeability of EP Minerals’ actions in
loading the railcar under pressure. They also did not describe the methodology
used to derive their opinions or identify the bases for their otherwise bare
assertions. And beyond general references to their broad areas of expertise, they
did not provide any link between their expertise and their opinions and
methodology. We therefore cannot say that the district court abused its discretion
in finding their opinions unreliable and excluding them.
2. Marshall argues that the district court erred in granting Float’s motion for
summary judgment on his claim under the Oregon Safe Employment Act (OSEA),
Or. Rev. Stat. § 654.015, his claim under the Oregon Employer Liability Law
(OELL), Or. Rev. Stat. § 654.305, and his common-law negligence claim.
The district court held that an OSEA claim under section 654.015 requires a
plaintiff to allege a separate violation of the Oregon safety code, which Marshall
concedes he did not do. Marshall contends that because section 654.015 is itself a
part of the safety code, it provides a standalone cause of action. That interpretation
is not supported by Oregon law. Section 654.015 merely codifies the common-law
standard of the duty to “furnish a safe place of employment.” Entler v. Hamilton,
481 P.2d 85, 86 (Or. 1971). Marshall identifies no Oregon case in which an alleged
violation of section 654.015 alone was sufficient to find an owner negligent.
4 The OELL “imposes a heightened standard of care on employers and others
who are in charge of work involving risk or danger.” Boothby v. D.R. Johnson
Lumber Co., 55 P.3d 1113, 1116 (Or. Ct. App. 2002) (internal quotation marks
omitted). As the district court explained, Marshall was employed by EP Minerals,
not by Float. Marshall argues that Float should be deemed an indirect employer
under what is known as the “common enterprise” test, which asks whether the non-
employer has affirmatively exercised control over the activity or instrumentality
that caused the injury. See Brown v. Boise-Cascade Corp., 946 P.2d 324, 329 (Or.
Ct. App. 1997).
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NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 15 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
CLINTON O. MARSHALL, No. 22-35899
Plaintiff-Appellant, D.C. No. 3:20-cv-01899-MO
v. MEMORANDUM* RS 2018 FLOAT, LLC; GREENBRIER CENTRAL, LLC,
Defendants-Appellees,
and
WELLS FARGO RAIL CORPORATION; ACF INDUSTRIES, LLC; WYOMING COLORADO RAILROAD, INC., DBA Oregon Eastern Railroad; AMERICAN RAILCAR LEASING, LLC; SMBC RAILCAR SERVICES, LLC; BNSF RAILWAY COMPANY; UNION PACIFIC RAILROAD COMPANY; AMERICAN RAILCAR INDUSTRIES; AMERICAN INDUSTRIAL TRANSPORT; THE GREENBRIER COMPANIES, INC.,
Defendants.
Appeal from the United States District Court for the District of Oregon Michael W. Mosman, District Judge, Presiding
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Argued and Submitted December 7, 2023 Portland, Oregon
Before: NGUYEN and MILLER, Circuit Judges, and MONTALVO,** District Judge.
Clinton O. Marshall, an employee of EP Minerals, Inc., was injured while
working on a pressurized railcar manufactured by Greenbrier Central LLC
(Greenbrier) and owned and leased by RS 2018 Float, LLC (Float). In this
diversity action, Marshall brought claims against Float and Greenbrier under
Oregon law. The district court excluded certain expert testimony proffered by
Marshall and then granted summary judgment to the defendants on all claims.
Marshall appeals. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
We review a district court’s ruling on the admissibility of expert testimony
for abuse of discretion. Messick v. Novartis Pharms. Corp., 747 F.3d 1193, 1196
(9th Cir. 2014). We review a district court’s grant of summary judgment de novo.
Primiano v. Cook, 598 F.3d 558, 563 (9th Cir. 2010). Summary judgment is
appropriate only when “there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Washinton Mut. Inc. v. United
States, 636 F.3d 1207, 1216 (9th Cir. 2011) (quoting Fed. R. Civ. P. 56(a)).
** The Honorable Frank Montalvo, United States District Judge for the Western District of Texas, sitting by designation.
2 1. Marshall argues that the district court improperly excluded parts of his
experts’ testimony on railcar design, modifications, and loading practices. Under
Federal Rule of Evidence 702, a district court must determine “whether the expert
witness is qualified and has specialized knowledge that will ‘assist the trier of fact
to understand the evidence or to determine a fact in issue.’” McKendall v. Crown
Control Corp., 122 F.3d 803, 805 (9th Cir. 1997) (quoting Fed. R. Evid. 702),
overruled on other grounds by White v. Ford Motor Co., 312 F.3d 998, 1007 (9th
Cir. 2002); see Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 591 (1993).
The touchstone of this inquiry is reliability. Daubert, 509 U.S. at 590 & n.9.
Ultimately, the test of reliability is “flexible,” id. at 594, and a district court is
given wide latitude in deciding both how to determine reliability and in making the
reliability determination itself. See Kumho Tire Co., Ltd. v. Carmichael, 526 U.S.
137, 152 (1999).
Marshall correctly observes that there is “no requirement that an expert be a
specialist in a given field,” Doe v. Cutter Biological, Inc., 971 F.2d 375, 385 (9th
Cir. 1992), and that any “lack of particularized expertise goes to the weight
accorded [an expert’s] testimony, not to the admissibility of her opinion as an
expert,” United States v. Garcia, 7 F.3d 885, 890 (9th Cir. 1993). To the extent that
the district court’s order may be construed as resting on the experts’ lack of
particularized expertise with railcars, we do not endorse its analysis.
3 As the district court noted, however, Marshall’s experts did not explain the
basis for their opinions regarding the foreseeability of EP Minerals’ actions in
loading the railcar under pressure. They also did not describe the methodology
used to derive their opinions or identify the bases for their otherwise bare
assertions. And beyond general references to their broad areas of expertise, they
did not provide any link between their expertise and their opinions and
methodology. We therefore cannot say that the district court abused its discretion
in finding their opinions unreliable and excluding them.
2. Marshall argues that the district court erred in granting Float’s motion for
summary judgment on his claim under the Oregon Safe Employment Act (OSEA),
Or. Rev. Stat. § 654.015, his claim under the Oregon Employer Liability Law
(OELL), Or. Rev. Stat. § 654.305, and his common-law negligence claim.
The district court held that an OSEA claim under section 654.015 requires a
plaintiff to allege a separate violation of the Oregon safety code, which Marshall
concedes he did not do. Marshall contends that because section 654.015 is itself a
part of the safety code, it provides a standalone cause of action. That interpretation
is not supported by Oregon law. Section 654.015 merely codifies the common-law
standard of the duty to “furnish a safe place of employment.” Entler v. Hamilton,
481 P.2d 85, 86 (Or. 1971). Marshall identifies no Oregon case in which an alleged
violation of section 654.015 alone was sufficient to find an owner negligent.
4 The OELL “imposes a heightened standard of care on employers and others
who are in charge of work involving risk or danger.” Boothby v. D.R. Johnson
Lumber Co., 55 P.3d 1113, 1116 (Or. Ct. App. 2002) (internal quotation marks
omitted). As the district court explained, Marshall was employed by EP Minerals,
not by Float. Marshall argues that Float should be deemed an indirect employer
under what is known as the “common enterprise” test, which asks whether the non-
employer has affirmatively exercised control over the activity or instrumentality
that caused the injury. See Brown v. Boise-Cascade Corp., 946 P.2d 324, 329 (Or.
Ct. App. 1997). A finding of indirect employment under that test requires that “the
defendant or his employee and plaintiff’s employer must actively join in a physical
way in carrying on the particular work which produces the injury.” Thomas v.
Foglio, 358 P.2d 1066, 1069 (Or. 1961). Although Float retained some control
over the railcar through a lease provision prohibiting modification, that is
insufficient to establish that Float “actively joined in a physical way” in carrying
out EP Minerals’ work.
As for the common-law negligence claim, the district court did not abuse its
discretion in excluding the expert testimony discussed above. Without that
testimony, no evidence in the record established the foreseeability of EP Minerals’
use of the EP pressurized apparatus. Without such evidence, Marshall did not
create a genuine dispute of material fact as to foreseeability, which is an element of
5 a negligence claim.
3. Finally, Marshall argues that the district court erred in granting
Greenbrier’s motion for summary judgment on his product liability claims. Under
Oregon Revised Statute § 30.915, a defendant is entitled to a complete defense to
product liability claims where it can establish that, among other things, a product
was altered or modified in a manner not in accordance with the manufacturer’s
instructions and in a manner that was not reasonably foreseeable. Marshall
contends that the EP pressurized apparatus is not a modification. But EP Minerals’
use of that apparatus bypassed the safety catch on the original hatches, which
would have prevented the hatch cover from opening while the railcar was under
pressure. The bypassing of that safety feature constituted a modification. There is
no dispute that Greenbrier did not know of EP Minerals’ use of the apparatus. And,
as previously discussed, there is no evidence in the record that the use of the
apparatus was reasonably foreseeable. Because Greenbrier established that the
elements of section 30.915’s complete defense were satisfied, the district court did
not err in granting summary judgment as to Marshall’s product liability claims.
AFFIRMED.