Hobus v. Howmedica Osteonics Corp.

• Court: Court of Appeals for the Ninth Circuit
• Decided: January 3, 2025
• Docket: 23-3528
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION JAN 3 2025 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

JACOB HOBUS, No. 23-3528

Plaintiff - Appellant,

v. DC No. 3:21-cv-00080-AN HOWMEDICA OSTEONICS CORP., a New Jersey Corporation, MEMORANDUM* Defendant - Appellee.

Appeal from the United States District Court for the District of Oregon Adrienne C. Nelson, District Judge, Presiding

Argued and Submitted December 2, 2024 Portland, Oregon

Before: TASHIMA, NGUYEN, and SUNG, Circuit Judges.

Jacob Hobus appeals from the district court’s grant of summary judgment in

defendant’s favor in his diversity action asserting product liability claims under

Oregon law against Howmedica Osteonics Corp. (“HOC”), the manufacturer of an

AccuLIF® TL Cage System that was implanted during surgery on Hobus’s spine.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. We have jurisdiction under 28 U.S.C. § 1291. We review de novo the district

court’s grant of summary judgment, and for abuse of discretion its decision to

exclude expert testimony. See Newmaker v. City of Fortuna, 842 F.3d 1108, 1110

(9th Cir. 2016). We affirm.

1. The district court did not abuse its discretion in excluding as

unreliable the expert opinion of Dr. Jeffrey P. Johnson. Dr. Johnson used no

identifiable methodology, and his reasoning was undermined by his failure to

consider alternative factors despite Hobus’s long history of chronic pain. See Fed.

R. Evid. 702; Elosu v. Middlefork Ranch Inc., 26 F.4th 1017, 1024 (9th Cir. 2022)

(“To evaluate reliability, the district court ‘must assess the expert’s reasoning or

methodology, using . . . appropriate criteria such as testability, publication in peer-

reviewed literature, known or potential error rate, and general acceptance.’ These

factors are nonexclusive, and ‘the trial court has discretion to decide how to test an

expert’s reliability . . . based on the particular circumstances of the particular

case.’” (citations omitted)); see also Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146

(1997) (“[N]othing in either [the case law] or the Federal Rules of Evidence

requires a district court to admit opinion evidence that is connected to existing data

only by the ipse dixit of the expert. A court may conclude that there is simply too

great an analytical gap between the data and the opinion proffered.”).

2 2. Having acted within its discretion in excluding Dr. Johnson’s expert

opinion on medical causation, the district court properly granted summary

judgment to HOC because Hobus failed to raise a triable issue of fact as to whether

HOC’s allegedly defective product caused his injury. See Glover v. BIC Corp., 6

F.3d 1318, 1327 (9th Cir. 1993) (explaining that product liability claims under

Oregon law require the plaintiff to prove a causal connection between the allegedly

defective product and the injury); see also Baughman v. Pina, 113 P.3d 459, 460

(Or. Ct. App. 2005) (“When the element of causation involves a complex medical

question, as a matter of law, no rational juror can find that a plaintiff has

established causation unless the plaintiff has presented expert testimony that there

is a reasonable medical probability that the alleged negligence caused the

plaintiff’s injuries.”).

AFFIRMED.