Ronald Brown v. Pg&e

• Court: Court of Appeals for the Ninth Circuit
• Decided: September 14, 2020
• Docket: 18-56504
• Status: Unpublished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NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS SEP 14 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

RONALD W. BROWN; SANDRA L. No. 18-56504 BROWN, D.C. No. 5:16-cv-00654-DMG-KK Plaintiffs-Appellants,

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.

Sandra L. Brown appeals pro se from the district court’s summary judgment

in her 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 Brown failed

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

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

injuries resulted from her 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 Sandra Brown in opposition to

summary judgment because such evidence constituted inadmissible lay opinion on

matters requiring scientific, technical, and specialized knowledge and neither

Brown 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

2 18-56504 to all types 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 Brown failed to

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

witnesses in her 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 her contentions, Brown did not request an extension of time

for expert discovery and the district court did not exclude any of her proffered

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

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

that the district court violated her 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).

All pending motions and requests are denied.

3 18-56504 This case remains administratively closed as to appellant Ronald W. Brown.

See Docket Entry Nos. 17, 20.

AFFIRMED.

4 18-56504