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NOT FOR PUBLICATION MAR 07 2013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 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, 1113 (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.

701(c) (limiting lay opinion testimony to testimony “not based on scientific,

technical, or other specialized knowledge within the scope of [Federal Rule of

Evidence] 702”). The district court incorrectly determined that “[a]ny witness can

talk about his job,” when, in fact, “any part of a witness’ testimony that is based

upon scientific, technical, or other specialized knowledge within the scope of Rule

702 is governed by the standards of Rule 702.” Fed. R. Evid. 701 advisory

2 committee’s note. This is true even when the expertise involved is specialized

knowledge gained as part of a witness’s job; it is certainly true when the testimony

is based upon scientific and technical knowledge. See United States v. Figueroa-

Lopez, 125 F.3d 1241, 1246 (9th Cir. 1997) (distinguishing between job-related

testimony that falls within Rule 701 and job-related testimony that could only be

admitted under Rule 702).

The admission of Leong’s testimony was not harmless error. See United

States v. Freeman, 498 F.3d 893, 905 (9th Cir. 2007). Despite designating three

expert witnesses, General Dynamics called Leong as its only witness at trial, and

his testimony more likely than not impacted the verdict. Because Leong testified

as a lay witness, plaintiffs were not afforded the important protections of Federal

Rule of Civil Procedure 26(a)(2). For example, despite issuing a broad subpoena,

plaintiffs did not receive all of the photographs, physical evidence, or any of the

historical malfunction investigation files that Leong relied on in his testimony.

Leong had been designated as a lay witness only. Although plaintiffs could have

filed motions to compel production of the materials Leong relied on, they were not

on notice that he would be allowed to present expert testimony at trial. They

prepared accordingly. Finally, the error in admitting Leong’s testimony was not

harmless because the district court correctly ruled that Hawaii’s strict liability law

3 did not entitle General Dynamics to judgment as a matter of law, and the parties

stipulated that General Dynamics was the successor entity responsible for the

manufacture of the mortar shell. See Jenkins v. Whittaker Corp., 785 F.2d 720,

731 (9th Cir. 1986).

REVERSED AND REMANDED FOR A NEW TRIAL.

4

FILED

Rodriguez v. General Dynamics Armament and Technical Products, No. 11-165312013

MAR 07

MOLLY C. DWYER, CLERK

GRABER, Circuit Judge, dissenting: U .S. C O U R T OF APPE ALS

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.