NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS APR 24 2024

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

MARK BOWDEN, No. 22-35680

Plaintiff-Appellee, D.C. No. 3:17-cv-01411-SI

v.

MEMORANDUM*

GENIE INDUSTRIES (A TEREX BRAND)

INC.,

Defendant-Appellant,

and

UNITED RENTALS (NORTH AMERICA)

INC.,

Defendant.

Appeal from the United States District Court for the District of Oregon Michael H. Simon, District Judge, Presiding

Argued and Submitted December 7, 2023 Portland, Oregon

Before: NGUYEN and MILLER, Circuit Judges, and MONTALVO,** District Judge.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Frank Montalvo, United States District Judge for the Western District of Texas, sitting by designation. Genie Industries, Inc., (Genie) appeals from the district court’s judgment,

following a jury trial, in favor of Mark Bowden in this product-liability action. We

have jurisdiction under 28 U.S.C. § 1291, and we affirm.

1. Genie argues that the district court erred in allowing Bowden to present

certain expert testimony despite the untimeliness of his expert disclosures. When a

party does not comply with the disclosure rules set forth in Federal Rule of Civil

Procedure 26, the party can be subject to sanctions. Specifically, Rule 37(c)(1)

states that “[i]f a party fails to provide information or identify a witness as required

by Rule 26(a) or (e), the party is not allowed to use that information or witness to

supply evidence on a motion, at a hearing, or at a trial, unless the failure was

substantially justified or is harmless.”

We review the district court’s admission of expert testimony for abuse of

discretion. Unicolors, Inc. v. H&M Hennes & Mauritz, L.P., 52 F.4th 1054, 1063

(9th Cir. 2022). We “give particularly wide latitude to the district court’s discretion

to issue sanctions under Rule 37(c)(1).” Yeti by Molly, Ltd. v. Deckers Outdoor

Corp., 259 F.3d 1101, 1106 (9th Cir. 2001). In Liberty Insurance Corp. v. Brodeur,

we pointed to four factors that “guide the determination of whether substantial

justification and harmlessness exist, including (1) prejudice or surprise to the party

against whom the evidence is offered; (2) the ability of that party to cure the

prejudice; (3) the likelihood of disruption of trial; and (4) bad faith or willfulness

2 in not timely disclosing the evidence.” 41 F.4th 1185, 1192 (9th Cir. 2022)

(quoting Silvagni v. Wal-Mart Stores, Inc., 320 F.R.D. 237, 242 (D. Nev. 2017)).

The district court considered those factors, and its determination that Bowden’s

untimely disclosures were harmless was not an abuse of discretion.

2. Genie argues that the district court erred in denying its motions for

judgment as a matter of law. Specifically, Genie contends that it was entitled to

partial judgment as a matter of law as to damages from Bowden’s ongoing back

and knee problems, and any post-trial noneconomic damages stemming from a

finding of permanent injury; as well as judgment as a matter of law as to both of

Bowden’s product-liability claims.

We review de novo the denial of a renewed motion for judgment as a matter

of law, “viewing the evidence in the light most favorable to the verdict.” In re Bard

IVC Filters Prod. Liab. Litig., 969 F.3d 1067, 1077 (9th Cir. 2020). Judgment as a

matter of law is warranted where “the evidence permits only one reasonable

conclusion, and that conclusion is contrary to the jury’s verdict.” EEOC v. Go

Daddy Software, Inc., 581 F.3d 951, 961 (9th Cir. 2009) (quoting Josephs v.

Pacific Bell, 443 F.3d 1050, 1062 (9th Cir. 2006)).

a. Genie argues that Bowden presented inadequate evidence that his back

and knee injuries were caused by the accident. Under Oregon law, it maintains,

expert medical testimony must refute other potential causes of the injuries,

3 ensuring that the jury does not rely on inferential reasoning when confronted with

multiple pieces of medical evidence. See Pinkerton v. Tri-County Metro. Serv.

Dist., 125 P.3d 840, 843 (Or. Ct. App. 2005); Hudjohn v. S&G Mach. Co., 114

P.3d 1141, 1149 (Or. Ct. App. 2005). Genie contends that under this rule, Bowden

did not carry his burden as to causation. We disagree with Genie’s reading of

Oregon law.

“When interpreting state law, federal courts are bound by decisions of the

state’s highest court.” Alliance for Prop. Rts. & Fiscal Resp. v. City of Idaho Falls,

742 F.3d 1100, 1103 (9th Cir. 2013) (quoting Arizona Elec. Power Coop., Inc. v.

Berkeley, 59 F.3d 988, 991 (9th Cir. 1995)). When a state supreme court has not

squarely addressed an issue, we are tasked with “predict[ing] how the highest state

court would decide the issue using intermediate appellate court decisions, decisions

from other jurisdictions, statutes, treatises and restatements for guidance.” Id. at

1102 (quoting Glendale Assocs., Ltd. v. NLRB, 347 F.3d 1145, 1154 (9th Cir.

2003)). Even assuming that the Oregon Supreme Court would adopt the approach

in Hudjohn and Pinkerton, those cases do not stand for the proposition that a

plaintiff’s expert must refute alternative causes in all cases involving “complex

medical situations,” Pinkerton, 125 P.3d at 843, or that a jury cannot interpret one

treating physician’s testimony in light of another’s. Bowden presented testimony as

to causation from medical experts. The only evidence of other causes came from

4 Genie’s own expert, whom the jury was entitled to disbelieve. Viewing the

evidence in the light most favorable to Bowden and drawing all reasonable

inferences in his favor, the jury could have found that his back and knee injuries

were caused by the accident.

b. Genie also argues that Bowden did not establish that his injuries were

permanent and that the district court therefore erred in denying judgment as a

matter of law as to post-trial noneconomic damages. It relies on Elan v. Tate, in

which the Oregon Court of Appeals held that “[a] permanent injury is an injury

that ‘will last during the life of the injured person.’” 430 P.3d 179, 182 (Or. Ct.

App. 2018) (quoting Skultety v. Humphreys, 431 P.2d 278, 281 (Or. 1967)). At

trial, the jury heard testimony that Bowden’s medical experts did not believe

Bowden could return to work, that he “was clearly not able to work,” and that

Bowden’s fears that his injury would cause him to become disabled and unable to

return to work were realized. As one witness put it, “I’ve not seen many people try

as hard as [Bowden] did to try to overcome this. Sometimes you can’t. And sadly,

that happened here with him.” Moreover, the jury heard testimony from Bowden

that, seven years after the incident, he continued to experience debilitating pain.

Drawing all inferences in favor of Bowden, a rational jury could conclude from

that evidence that the effects of Bowden’s injuries would not diminish with time

but would instead last throughout his life.

5 For similar reasons, we reject Genie’s contention that the district court erred

in instructing the jury on permanent injury. “Whether there is sufficient evidence to

support an instruction is reviewed for abuse of discretion.” Du v. Allstate Ins. Co.,

697 F.3d 753, 757 (9th Cir. 2012). The same evidence that supported the district

court’s decision to deny judgment as a matter of law on post-trial noneconomic

damages establishes that the district court did not abuse its discretion in giving a

permanent-injury instruction.

c. Finally, Genie argues that it was entitled to judgment as a matter of law on

the product-liability claims because Bowden’s experts did not establish that

Bowden’s injury was caused by either a design defect or failure to warn. It

emphasizes that Bowden testified that he only lightly engaged the joystick,

whereas his experts’ theories of design defect or failure to warn turned on the need

to avoid aggressive movements of the joystick. We agree with Genie that Bowden

is bound by his description of the accident. See Bockman v. Mitchell Bros. Truck

Lines, Inc., 320 P.2d 266, 271 (Or. 1958). But Bowden’s testimony did not

describe his handling of the joystick with quantitative precision. Thus, drawing all

inferences in favor of Bowden, a rational jury could have accepted Bowden’s

testimony but nevertheless found that the accident occurred in the manner

described by Bowden’s experts. Genie was therefore not entitled to judgment as a

matter of law on the product-liability claims.

6 The motion for leave to file a supplemental brief (Dkt. No. 42) is DENIED

as moot.

AFFIRMED.

7