Bowden v. Genie Indus. A Terex Brand Inc., 2024 U.S. App. LEXIS 9924 (9th Cir. April 24, 2024) (unpublished):
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.
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 OutdoorCorp., 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 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.
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 BardIVC 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. GoDaddy Software, Inc., 581 F.3d 951, 961 (9th Cir. 2009) (quoting Josephs v. Pacific Bell, 443 F.3d 1050, 1062 (9th Cir. 2006)).
"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." [*4] 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 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.
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.
The motion for leave to file a supplemental brief (Dkt. No. 42) is DENIED as moot.
AFFIRMED.
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