Shari Lind v. United States

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 18, 2019
• Docket: 18-15173
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION APR 18 2019 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

SHARI A. LIND, No. 18-15173

Plaintiff-Appellant, D.C. No. 4:13-cv-00032-JAS

v. MEMORANDUM* UNITED STATES OF AMERICA,

Defendant-Appellee.

Appeal from the United States District Court for the District of Arizona James Alan Soto, District Judge, Presiding

Argued and Submitted April 15, 2019 San Francisco, California

Before: HAWKINS and M. SMITH, Circuit Judges, and VRATIL,** District Judge.

Shari Lind appeals the bench trial verdict in this Federal Tort Claims Act case,

arguing the court improperly admitted specific-causation testimony from the

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Kathryn H. Vratil, United States District Judge for the District of Kansas, sitting by designation. government’s biomechanical expert, Dr. Joseph Peles, regarding her left shoulder

injury. We have jurisdiction under 28 U.S.C. § 1291 and affirm.

1. Lind failed to preserve her objection to Dr. Peles’ testimony. “Absent a

thorough examination of the objection raised in the motion in limine and an explicit

and definitive ruling by the district court that the evidence is admissible, a party does

not preserve the issue of admissibility for appeal absent a contemporaneous

objection.” United States v. Archdale, 229 F.3d 861, 864 (9th Cir. 2000). Although

Lind moved in limine to exclude Dr. Peles’ testimony, the court denied the motion,

which it found to be based on an untimely expert opinion, without deciding the issue

of admissibility. As Lind failed to raise her specific-causation objection at trial, in her

post-trial brief, or in her proposed findings of fact and conclusions of law, we review

for plain error. See United States v. Wells, 879 F.3d 900, 925 (9th Cir. 2018).

2. There was no plain error in admitting the relevant portions of Dr. Peles’

testimony. Lind concedes Dr. Peles is qualified to provide general-causation

testimony regarding the forces generated in a given collision and the types of injuries

one would expect those forces to cause. The portions of Dr. Peles’ testimony on

which the court relied—testimony regarding the known mechanisms that produce

traumatic labral tears and that it was unlikely the single force mechanism generated

2 in this collision could cause simultaneous tears to the top, front, and back of one’s

shoulder—constitute just such general-causation opinions.1

3. Lastly, even if the court had erred in admitting the relevant portions of Dr.

Peles’ testimony, any such error was harmless.2 In light of the court’s finding that

Lind’s medical causation witnesses were unpersuasive for reasons independent of Dr.

Peles’ testimony and that Lind experienced several other phenomena that could have

caused her left shoulder injury, it is “more probable than not” that the court would

have concluded Lind failed to carry her burden even absent Dr. Peles’ testimony. See

Wells, 879 F.3d at 924 (quoting Jules Jordan Video, Inc. v. 144942 Canada Inc., 617

F.3d 1146, 1159 (9th Cir. 2010)).

AFFIRMED.

1 As this is an appeal from a bench trial, the court is presumed to have ignored any potentially inadmissible portions of Dr. Peles’ testimony that it did not rely upon in its order. See Harris v. Rivera, 454 U.S. 339, 346 (1981). 2 Any error in admitting Dr. Peles’ statement that “it appears to be more of a degenerative process” was harmless given the court’s exclusive reliance on the unchallenged testimony of Dr. Eskay-Auerbach in finding that a degenerative process most likely necessitated Lind’s shoulder surgery. See Molina v. Astrue, 674 F.3d 1104, 1118–19 (9th Cir. 2012). 3