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NOT FOR PUBLICATION DEC 28 2011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 and

Albertson's (Defendants), alleging the monitor gave him inaccurately low blood

pressure readings, thus prompting him to stop taµing 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 stroµe. 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 court's

ruling, because the court did not consider the report. The court's summary

judgment order did not mention the report or the assertions contained in the expert

report as a basis for its decision. Thus, the district court did not err by not

addressing the admissibility of the report.

2. To establish a strict products liability defect claim or failure to warn

claim in Nevada, a plaintiff must show '(1) the product had a defect which

2 rendered it unreasonably dangerous, (2) the defect existed at the time the product

left the manufacturer, and (3) the defect caused the plaintiff's injury.' Rivera v.

Philip Morris, Inc., 209 P.3d 271, 275 (Nev. 2009) (quoting Fyssaµis v. Knight

Equip. Corp., 826 P.2d 570, 571 (Nev. 1992)) (internal quotation marµs omitted).

A. The district court found that Roberts did not offer evidence that the

monitor had a defect because he had 'presented no expert testimony

establishing . . . that the blood pressure monitor was defective.' However,

Nevada's courts have not expressly stated that a plaintiff must present expert

testimony to establish a defect. We 'may affirm a district court's judgment on any

ground supported by the record, whether or not the decision of the district court

relied on the same grounds or reasoning' adopted by this court. Atel Fin. Corp. v.

Ïuaµer Coal Co., 321 F.3d 924, 926 (9th Cir. 2003). On this record, the district

court did not err when it determined that Roberts had not offered evidence that the

monitor was defective.

Roberts presented only circumstantial evidence that the monitor was

defective. Nevada courts have never directly held that circumstantial evidence is

sufficient to prove a defect, yet some Nevada cases have relied on circumstantial

evidence to establish the existence of a defect. See Van Duzer v. Shoshone Coca

Cola Bottling Co., 741 P.2d 811, 812-14 (Nev. 1987) (finding that a bottle was

3 unreasonably dangerous and defective based on supermarµet customer's

testimony); Stacµiewicz v. Nissan Motor Corp. in U.S.A., 686 P.2d 925, 928 (Nev.

1984) (holding that driver's and witnesses' testimony about car steering

malfunction could be proof of defect without establishing the mechanical cause of

the malfunction).

In this case, even if circumstantial evidence may be used to prove a defect,

Roberts nonetheless did not offer sufficient circumstantial evidence to establish

that this monitor was defective. Although Roberts noticed a discrepancy between

the readings given by his monitor and those readings given by his doctor's

equipment (while in his doctor's office on one occasion), that single discrepancy

does not establish that the monitor gave inaccurately low readings. The monitor's

instructions stated that occasional high or low readings did not necessarily mean

that the monitor was malfunctioning. Further, while Roberts argues that the

monitor subsequently gave him normal or below normal readings, Roberts

presented no evidence demonstrating that fact.

B. The district court also found that Roberts failed to offer evidence of

causation, because he did not produce 'medical expert testimony opining to a

reasonable degree of medical certainty that the allegedly defective product caused

the plaintiff's injury.' However, to prove proximate cause in a strict products

4 liability action in Nevada, 'the plaintiff must show that the design defect in the

product was a substantial factor in causing his injury.' Price v. Blaine Kern

Artista, Inc., 893 P.2d 367, 370 (Nev. 1995).

Again, we may affirm the district court's judgment on a different ground, if

that different ground is supported by the record. Atel Fin. Corp., 321 F.3d at 926.

To evidence a 'substantial factor' for proximate cause, we must focus on the

foreseeability of the nature and extent of the injury the plaintiff claims was caused

by the defect. See Price, 893 P.2d at 371. As noted above, Roberts did not offer

sufficient evidence of a defect. Further, Roberts did not offer evidence that any

defect in the monitor was a substantial factor in causing his injury, because he did

not present any evidence that it would have been foreseeable that the defect would

cause him to stop taµing his medication.

In failure to warn claims, causation may be proven by showing 'that a

different warning would have altered the way the plaintiff used the product.'

Rivera, 209 P.3d at 275. However, Roberts did not offer any evidence that a

different warning would have caused him to remain on his medication or otherwise

alter the way he used the monitor.

Thus, the district court did not err when it determined that Roberts did not

offer evidence of causation for the strict products liability claim.

5 3. To prove proximate cause in a negligence action, 'it must appear that the

injury was the natural and probable consequence of the negligence or wrongful act,

and that it ought to have been foreseen in the light of the attending circumstances.'

Van Cleave v. Kietz-Mill Minit Mart, 633 P.2d 1220, 1221 (Nev. 1981) (per

curiam) (internal quotation marµs omitted). '[A] negligence action will not stand

when there is an intervening cause that in and of itself is the natural and logical

cause of the harm.' Wood v. Safeway, Inc., 121 P.3d 1026, 1037 (Nev. 2005)

(internal quotation marµs omitted).

As Roberts's own doctor testified, the natural and logical cause of this stroµe

was Roberts's decision to stop taµing his medication. Roberts made that decision

without consulting his doctor and after taµing fish oil pills, being told by his doctor

to reduce his medication by half, and adding the substance Co-Ï10 to his

'homeopathic' regimen. Further, Roberts offered insufficient circumstantial

evidence to suggest that there was a monitor defect or that it would be foreseeable

to the Defendants that he would stop taµing his medication as a result of using the

monitor. Thus, the district court correctly granted summary judgment on the

negligence claim.

4. Under Nevada law, a plaintiff is not required to negate any alternative

causes of an accident to establish a defective product. See Nev. Contract Servs.,

6 Inc. v. Squirrel Cos., Inc., 68 P.3d 896, 899-900 (Nev. 2003) (concluding such a

requirement did not apply for a breach of warranty action to survive summary

judgment); Stacµiewicz, 686 P.2d at 927 (stating such a burden did not apply, as a

matter of law, in the context of a judgment notwithstanding the verdict for a

products liability case). The district court improperly held that Roberts bore the

burden of establishing that the other factors raised by Defendants, such as alcohol

use, smoµing, and improper use of the monitor's large cuff, 'did not cause or

contribute to his stroµe.' Roberts objected to the admissibility of evidence relating

to whether a variety of other factors caused the stroµe.

Under harmless error analysis, a district court should be reversed for

improperly considering other factors, if such consideration was 'prejudicial' to the

plaintiff. See Las Vegas Sands, LLC v. Nehme, 632 F.3d 526, 534 (9th Cir. 2011).

Consideration of other factors by the court would be prejudicial, if excluding them

'would have precluded a grant of summary judgment, or warranted a grant of

summary judgment to the other party.' Id. While the court improperly considered

evidence of alternative causes, its error was harmless here. See Norse, 629 F.3d at

973. As noted above, Roberts did not offer sufficient evidence for his negligence

or strict product liability claims. Thus, we hold that any error in considering

evidence of other factors was harmless.

7

AFFIRMED.

8

FILED

10-16583 Roberts v. Albertson's LLC DEC 28 2011

MOLLY C. DWYER, CLERK

OLIVER, Chief U.S. District Judge, dissenting. U.S . CO U RT OF AP PE A LS

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., 741 P.2d 811, 812-13 (Nev. 1987) (finding bottle was unreasonably

dangerous based on lay witness testimony). Here, Plaintiff presented evidence that

he suffered a stroµe 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

offer evidence of causation because he did not 'produce medical expert testimony

opining to a reasonable degree of medical certainty that the allegedly defective

product caused the Plaintiff's injury.' Instead, the district court should have

determined whether there was evidence that the design defect in the product was a substantial factor in causing his injuries. I disagree with the majority's conclusion

that, nevertheless, Plaintiff did not present evidence that the design defect was a

substantial factor in causing his injury. Plaintiff presented evidence that he reported

his blood pressure readings to his doctor or a member of the doctor's staff, and

Plaintiff was told to reduce his intaµe of blood pressure medication by one-half. He

also presented evidence that, because the monitor gave him consistently normal

readings during the period between visits to his doctor, it caused him to believe that

his blood pressure was under control such that no medication was required. Although

the majority correctly indicates, 'we must focus on the foreseeability of the nature and

extent of the injury the [P]laintiff claims was caused by the defect,' I conclude that

such a focus leads to a result that is contrary to that reached by the majority. While

it might not be wise, I thinµ it is foreseeable that one might conclude that if a blood

pressure monitor consistently indicates that one's blood pressure is normal, one might

also conclude that one is not currently suffering from that condition.

Thus, I would reverse the granting of summary judgment and remand the case

bacµ to the district court for trial.

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