NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS SEP 10 2021

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

KIMBERLY ARCHIE, as survivors of No. 20-55081 decedent Paul Bright Jr.; JO CORNELL, an individual, and as survivor of decedent Tyler D.C. No. Cornell, 2:16-cv-06603-PSG-PLA

Plaintiffs-Appellants,

MEMORANDUM*

v.

POP WARNER LITTLE SCHOLARS,

INC., a nonprofit corporation,

Defendant-Appellee.

Appeal from the United States District Court for the Central District of California Philip S. Gutierrez, Chief District Judge, Presiding

Argued and Submitted August 30, 2021 Pasadena, California

Before: IKUTA, BENNETT, and R. NELSON, Circuit Judges.

Appellants Kimberly Archie and Jo Cornell filed suit under the Class Action

Fairness Act of 2005 (CAFA) against Pop Warner Little Scholars, Inc. (“Pop

Warner”). The operative complaint asserted various state law claims based on

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. allegations that Pop Warner failed to provide for the safety and health of its child

participants. Appellants alleged that playing Pop Warner football caused their

sons’ brain damage known as chronic traumatic encephalopathy (“CTE”), that

CTE caused their sons to engage in suicidal or reckless behavior, and that such

behavior ultimately led to their sons’ untimely deaths.

The district court granted summary judgment to Pop Warner because

Appellants’ causation experts rendered unreliable and thus inadmissible opinions.

As an alternative basis supporting its summary judgment order, the district court

found that, even assuming Appellants’ experts rendered admissible opinions,

Appellants produced insufficient evidence to create a triable issue as to causation

under California law. Appellants challenge the district court’s summary judgment

order. Pop Warner also raises the issue that the complaint fails to allege minimal

diversity under the CAFA, but the parties agree that this jurisdictional defect can

be corrected under 28 U.S.C. § 1653.

We have jurisdiction under 28 U.S.C. § 1291. We order that the complaint

be amended, nunc pro tunc, to reflect that Appellants are citizens of California and

affirm the district court’s summary judgment order.

“[W]e review questions of jurisdiction even if raised for the first time on

appeal.” United States v. Powell, 24 F.3d 28, 30 (9th Cir. 1994). We review de

novo the district court’s grant of summary judgment, viewing the evidence in the

2 light most favorable to the non-moving party. Messick v. Novartis Pharms. Corp.,

747 F.3d 1193, 1199 (9th Cir. 2014). “We review a district court’s decision to

exclude expert testimony for abuse of discretion.” United States v. Benavidez-

Benavidez, 217 F.3d 720, 723 (9th Cir. 2000). “Under the abuse of discretion

standard, we cannot reverse unless we have a definite and firm conviction that the

district court committed a clear error of judgment.” Id.

1. To establish jurisdiction under the CAFA, Appellants needed to allege

in their complaint that one of them was a citizen of a state different from any

defendant. See 28 U.S.C. § 1332(d)(2)(A). The complaint failed to do so. But

“[d]efective allegations of jurisdiction may be amended, upon terms, in the trial or

appellate courts.” 28 U.S.C. § 1653. Because the record supports that Appellants

were California citizens when they filed the complaint and the parties agree on that

fact, we exercise our authority under § 1653 and order the complaint amended,

nunc pro tunc, to reflect that Appellants are citizens of California. See Snell v.

Cleveland, Inc., 316 F.3d 822, 828 (9th Cir. 2002) (per curiam).

2. Under Federal Rule of Evidence 702, expert testimony must be

relevant and reliable. See Kumho Tire Co. v. Carmichael, 526 U.S. 137, 147

(1999). Only the reliability prong is at issue. “The reliability threshold requires

that the expert’s testimony have ‘a reliable basis in the knowledge and experience

of the relevant discipline.’ The court must determine ‘whether the reasoning or

3 methodology underlying the testimony is scientifically valid.’” Messick, 747 F.3d

at 1197 (citations omitted). Exclusion is permissible when “there is simply too

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

Co. v. Joiner, 522 U.S. 136, 146 (1997).

Appellants introduced declarations and reports from two causation experts to

establish that Pop Warner football was a substantial factor in causing the young

men’s deaths.1 Both experts concluded that playing Pop Warner football could

have caused CTE and that CTE is linked to suicidal and reckless behaviors, and

based on those underlying conclusions, the experts ultimately concluded that Pop

Warner was therefore a substantial causal factor in the deaths. Both opinions,

however, contained no explanation supporting the logical leap from the underlying

conclusions to the ultimate conclusion. Put differently, neither expert explained

why Pop Warner was a substantial cause rather than simply a possible cause.

Given this logical gap, the district court did not abuse its discretion in finding that

the expert opinions were unreliable and thus inadmissible. Because none of

Appellants’ claims on appeal can survive without expert testimony establishing

1 Appellants agree that California substantive law, including its substantial factor test, applies to their claims on appeal. See Rutherford v. Owens-Illinois, Inc., 941 P.2d 1203, 1214 (Cal. 1997).

4 causation,2 see Jones v. Ortho Pharm. Corp., 209 Cal. Rptr. 456, 460 (Ct. App.

1985), the district court properly granted summary judgment to Pop Warner.

3. We also agree with the district court’s alternative holding that, even

assuming Appellants’ causation experts rendered admissible opinions, Appellants’

evidence failed to raise a triable issue as to causation under California law.

Appellants had to proffer an expert opinion “that contain[ed] a reasoned

explanation illuminating why the facts ha[d] convinced the expert, and therefore

should convince the jury, that it [was] more probable than not the negligent act

was a cause-in-fact of the plaintiff’s injury.” Jennings v. Palomar Pomerado

Health Sys., Inc., 8 Cal. Rptr. 3d 363, 370 (Ct. App. 2003). Appellants failed to do

so, as their experts’ opinions showed only that Pop Warner football could have

caused the deaths and contained no explanation why Pop Warner football likely

caused the deaths.3

The complaint is ordered AMENDED, nunc pro tunc; and the district

court’s summary judgment order is AFFIRMED.

2 The district court determined that all of Appellants’ claims on appeal depended on a showing of causation supported by expert testimony. Appellants do not challenge that determination. 3 To the extent the district court based its conclusion on the lack of evidence as to concussions or head injuries suffered by the two decedents during their time playing Pop Warner football, we agree that such reliance was erroneous. But any such error was harmless given that we agree with the district court’s alternative basis for concluding that Appellants had failed to create a triable issue as to causation.

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