Kevin Feagins v. Trump Organization

624 F. App'x 967

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 18, 2015
• Docket: 13-17359
• Status: Unpublished

Opinion

MEMORANDUM *

The district court erred by holding that Nevada law requires expert testimony for a claim of products liability. Krause Inc. v. Little, 117 Nev. 929, 34 P.3d 566, 571-72 (2001). Where there are no alternative explanations for a malfunction, Nevada law requires only evidence of an unexpected and dangerous malfunction to establish a defect. See e.g., Stackiewicz v. Nissan Motor Corp. in U.S.A., 100 Nev. 443, 686 P.2d 925, 928 (1984). The declarations made by members of the Feagins family, in conjunction with the videotape that depicted the events that occurred inside the elevator, provided sufficient evidence to survive Otis Elevator Co.’s motion for summary judgment.

The district court’s opinion was otherwise correct. The Feagins presented'no direct evidence of negligence by Trump. 1 Nor could a jury infer negligence under a theory of res ipsa loquitur because, at most, Trump exercised joint control over the elevator with Otis Elevator Co. Fireman’s Fund Am. Ins. Cos. v. Knobbe, 93 Nev. 201, 562 P.2d 825, 825-26 (1977); Landmark Hotel & Casino, Inc. v. Moore, 104 . Nev. 297, 757 P.2d 361, 363 (1988). The Feagins presented no evidence showing “oppression, fraud or malice” as required for punitive damages. Nev.Rev. Stat. § 42.005. And the district court did not abuse its discretion by refusing to reopen discovery given the Feagins’ lack of diligence both in fading to seek a schedule modification before the close of discovery and in failing to generate an expert report during the discovery period. See e.g., Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir.1992); Nidds v. Schindler Elevator Corp., 113 F.3d 912, 921 (9th Cir.1996).

We VACATE and REMAND for further proceedings consistent with this disposition. The Feagins shall bear Trump’s costs on appeal. Otis shall bear the Feag-ins’ and its own costs on appeal.

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.

1 . We use the term “Trump” to refer to all Trump defendants: the Trump Organization; Trump Ruffin Tower I, LLC; Trump International Hotel & Tower-Las Vegas Unit Owners Association; and Trump Ruffin Commercial, LLC.