Stephanie Rodriguez v. General Dynamics Armament and Technical Products

dissenting:

I would affirm the judgment and, therefore, respectfully dissent.

Under United States v. Figueroa-Lopez, 125 F.3d 1241 (9th Cir.1997), in this civil case we must consider whether the error in admitting expert opinion testimony as lay opinion testimony was harmless. As there, “the testimony in the instant case could have been admitted as expert opinion testimony,” id. at 1245 , had Philip Leong been duly qualified, as he could have been.

Nor did the absence of the usual procedures under Rule 26(a)(2) prejudice Plaintiffs. Because Leong was an independent, not a retained, expert, Plaintiffs deposed him before trial, and they had the opportunity to subpoena all supporting data underlying Leong’s opinion, along with any other potentially relevant information.

In addition, some of the physical evidence supported a two-cartridge explanation for the accident.

In the circumstances, a retrial is no more than a second bite at the same apple. Accordingly, I dissent.

MEMORANDUM *

Plaintiffs appeal a jury verdict finding the manufacturer of mortar cartridges not liable for causing an explosion during a military training exercise in Hawaii. Plaintiffs are the soldiers and family members of soldiers who were injured or killed in the explosion. We have jurisdiction in this diversity case under 28 U.S.C. § 1291 .

Plaintiffs argue that the trial court committed reversible error by admitting the testimony of Army Investigator Philip Leong as lay opinion testimony under Federal Rule of Evidence 701. Because Leong’s testimony was expert in nature, and its admission was not harmless, we reverse and remand for a new trial.

We review evidentiary rulings admitting lay opinion testimony for abuse of discretion. United States v. Mendoza-Paz, 286 F.3d 1104, 1118 (9th Cir.2002). We review de novo the “construction or interpretation of ... the Federal Rules of Evidence, including whether particular evidence falls within the scope of a given rule.” United States v. Durham, 464 F.3d 976, 981 (9th Cir.2006).

Here, the district court erred when it allowed Leong to offer specialized and highly technical testimony about the cause of the explosion. See Fed.R.Evid.…

FILED

NOT FOR PUBLICATION MAR 07 2013

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS

FOR THE NINTH CIRCUIT

STEPHANIE RODRIGUEZ, individually No. 11-16531 and as Guardian Ad Litem of J.C., a minor; et al., D.C. No. 1:08-cv-00189-SOM-

KSC

Plaintiffs - Appellants,

v. MEMORANDUM *

GENERAL DYNAMICS ARMAMENT

AND TECHNICAL PRODUCTS,

Defendant - Appellee.

Appeal from the United States District Court for the District of Hawaii Susan Oki Mollway, Chief District Judge, Presiding

Argued and Submitted February 12, 2013 Honolulu, Hawaii

Before: GRABER, BYBEE, and CHRISTEN, Circuit Judges.

Plaintiffs appeal a jury verdict finding the manufacturer of mortar cartridges

not liable for causing an explosion during a military training exercise in Hawaii.

Plaintiffs are the soldiers and family members of soldiers who were injured or

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. killed in the explosion. We have jurisdiction in this…