Nick Panchev v. Pg&e

• Court: Court of Appeals for the Ninth Circuit
• Decided: September 14, 2020
• Docket: 18-56501
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS SEP 14 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

NICK PANCHEV, No. 18-56501

Plaintiff-Appellant, D.C. No. 5:16-cv-01625-DMG-KK

v. MEMORANDUM* PACIFIC GAS & ELECTRIC COMPANY, a California corporation; DOES, 1 through 10, inclusive,

Defendants-Appellees.

Appeal from the United States District Court for the Central District of California Dolly M. Gee, District Judge, Presiding

Submitted September 8, 2020**

Before: TASHIMA, SILVERMAN, and OWENS, Circuit Judges.

Nick Panchev appeals pro se from the district court’s summary judgment in

his 42 U.S.C. § 1983 action alleging Fourteenth Amendment claims stemming

from alleged exposure to elevated levels of arsenic and uranium. We have

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 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. Stephens v. Union Pac.

R.R. Co., 935 F.3d 852, 854 (9th Cir. 2019). We affirm.

The district court properly granted summary judgment because plaintiff

failed to raise a genuine dispute of material fact as to whether elevated levels of

arsenic or uranium had the capacity to cause his alleged injuries, and whether

plaintiff’s alleged injuries resulted from his exposure to elevated levels of arsenic

or uranium. See Harper v. City of Los Angeles, 533 F.3d 1010, 1026 (9th Cir.

2008) (“In a § 1983 action, the plaintiff must [] demonstrate that the defendant’s

conduct was the actionable cause of the claimed injury.”); In re Hanford Nuclear

Rsrv. Litig., 292 F.3d 1124, 1133-34 (9th Cir. 2002) (in a toxic tort case, plaintiff

must demonstrate general causation, “whether the substance at issue had the

capacity to cause the harm alleged,” and specific causation, “whether a particular

individual suffers from a particular ailment as a result of exposure to a substance”).

The district court did not abuse its discretion by sustaining defendant’s

objections to certain evidence submitted by plaintiff in opposition to summary

judgment because such evidence constituted inadmissible lay opinion on matters

requiring scientific, technical, and specialized knowledge and neither plaintiff nor

the other declarants were qualified as experts on such matters under Federal Rule

of Evidence 702. See Fed. R. Evid. 701, 702; Kumho Tire Co., Ltd. v. Carmichael,

526 U.S. 137, 141 (1999) (trial court’s gatekeeping obligation applies to all types

2 18-56501 of expert testimony); Nationwide Transp. Fin. v. Cass Info. Sys., Inc., 523 F.3d

1051, 1058 (9th Cir. 2008) (district court’s decision on admissibility of lay opinion

testimony “will be overturned only if it constitutes a clear abuse of discretion”

(citation and quotation marks omitted)).

The district court did not abuse its discretion by ruling that plaintiff failed to

submit expert testimony on causation because plaintiff failed to disclose any expert

witnesses in his Federal Rule of Civil Procedure 26(a)(2) expert disclosures. See

Fed. R. Civ. P. 26(a)(2); King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987),

overruled on other grounds by Lacey v. Maricopa County, 693 F.3d 896 (9th Cir.

2012) (en banc) (pro se litigants are held to same procedural rules as other

litigants). Contrary to plaintiff’s contentions, plaintiff did not request an extension

of time for expert discovery and the district court did not exclude any of his

proffered expert testimony on the basis of Federal Rule of Civil Procedure 37(c).

We reject as meritless and unsupported by the record plaintiff’s contentions

that the district court violated his due process rights, was biased, or failed to

conduct a de novo review of the magistrate judge’s Report & Recommendation.

We do not consider matters not specifically and distinctly raised and argued

in the opening brief, or arguments and allegations raised for the first time on

appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).

3 18-56501 All pending motions and requests are denied.

AFFIRMED.

4 18-56501