David Roberts v. Albertson's LLC

FILED

NOT FOR PUBLICATION DEC 28 2011

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS U.S . CO U RT OF AP PE A LS

FOR THE NINTH CIRCUIT

DAVID ROBERTS, No. 10-16583

Plaintiff - Appellant, D.C. No. 2:08-cv-00236-PMP-

LRL

v.

ALBERTSON'S LLC; SAMSUNG MEMORANDUM *

AMERICA, INC.,

Defendants - Appellees.

Appeal from the United States District Court for the District of Nevada Philip M. Pro, District Judge, Presiding

Argued and Submitted September 14, 2011 San Francisco, California

Before: THOMAS and N.R. SMITH, Circuit Judges, and OLIVER, Chief District Judge.**

David Roberts suffered a stroµe after purchasing a home blood pressure

monitor distributed by Samsung America, Inc. and sold by Albertson's LLC.

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The Honorable Solomon Oliver, Jr., Chief District Judge for the U.S. District Court for the Northern District of Ohio, sitting by designation. Roberts filed a negligence and strict products liability action against Samsung…

MEMORANDUM **

David Roberts suffered a stroke after purchasing a home blood pressure monitor distributed by Samsung America, Inc. and sold by Albertson’s LLC. Roberts filed a negligence and strict products liability action against Samsung and Albertson’s (Defendants), alleging the monitor gave him inaccurately low blood pressure readings, thus prompting him to stop taking his prescribed blood pressure medication. The district court granted Defendants’ motion for summary judgment, holding that Roberts had not offered evidence that the monitor was defective or that it caused his stroke. We affirm the district court’s decision.

1. “Before ordering summary judgment in a case, a district court must ... rule on evidentiary objections that are material to its ruling.” Norse v. City of Santa Cruz, 629 F.3d 966, 973 (9th Cir. 2010). An evidentiary objection is material to the district court’s ruling if the court considered the evidence that was the subject of the objection. See id. Here, Roberts objected to the admissibility of Defendants’ expert report. The court did not rule on the objections to the report. However, Roberts’s objections to the report were not material to the district…

dissenting.

One of the grounds on which the district court granted Defendant’s motion for summary judgment was that Plaintiff was required to, and did not, present “expert testimony establishing ... that the blood pressure monitor was defective.” I agree with the majority that “Nevada’s courts have not expressly stated that a plaintiff must present expert testimony to establish a defect.” However, I disagree with the majority’s conclusion that, assuming no such requirement, Plaintiff did not otherwise present evidence that the monitor was defective. Under Nevada law, a plaintiff may rely on evidence other than expert testimony to show that a defective product failed to perform in the manner reasonably expected. See, e.g., Van Duzer v. Shoshone Coca Cola Bottling Co., 103 Nev. 383 , 741 P.2d 811, 812-13 (1987) (finding bottle was unreasonably dangerous based on lay witness testimony). Here, Plaintiff presented evidence that he suffered a stroke as a result of high blood pressure at a time when his monitor was consistently showing that his pressure was normal or below normal. I also agree with the majority that the district court erred when it held that Plaintiff had failed to…