David Egilman v. Conagra Foods Inc.

MEMORANDUM

Appellant, Dr. David Egilman, was a proposed expert witness for plaintiffs Larry and Ruth Newkirk in a toxic tort action against ConAgra and Chr. Hansen, Inc. (“Defendants”). Defendants filed joint motions to exclude Dr. Egilman’s testimony. The district court granted the motions and also entered summary judgment for Defendants. Egilman appeals the exclusion of his testimony, claiming that the district court abused its discretion by using defamatory language in its order.

We have allowed nonparty appellate standing “only when (1) the appellant, though not a party, participated in the district court proceedings, and (2) the equities of the case weigh in favor of hearing the appeal.” Hilao v. Estate of Marcos, 393 F.3d 987, 992 (9th Cir.2004) (quoting S. Cal. Edison Co. v. Lynch, 307 F.3d 794 , 804 (9th Cir.2002)). Appellant’s participation in the district court consisted of filing reports in his capacity as an expert. His participation was not akin to party participation. He did not file papers objecting to the order excluding his testimony. He did not argue the legal merits of the motion to exclude his testimony. See, e.g., Commodity Futures Trading Comm’n v. Topworth…