Justice conceptMust a plaintiff present expert testimony to support his claim pursuant to California’s consumer expectations test for design defects?

The Ninth Circuit says yes.

The plaintiff in a recent case appealed the district court’s grant of summary judgment in favor of an electric company, arguing that the it erred in holding that he was required to present expert testimony to support his claim pursuant to California’s consumer expectations test for design defects.

Plaintiff asserted that lay testimony was sufficient to demonstrate reasonable consumer expectations of an ordinary user navigating the barrier inside an industrial switchboard. Not so, said a Ninth Circuit panel. Circuit Judges O’Scannlain, Fernandez, and Rawlinson held that the district court properly applied California law in holding that Plaintiff was required to present expert testimony to support his consumer expectations theory of design defect.

The panel found that the workings of the industrial switchboard and its internal barrier were “sufficiently beyond common experience that the opinion of an expert [was] required.” As such, lay testimony from Plaintiff, his supervisor, and a human factors witness was not sufficient to demonstrate the reasonable expectations of an electrician concerning the barrier’s protections when performing work inside a partially electrified switchboard (emphasis by the Court). The Court noted that in his opposition to summary judgment, Plaintiff acknowledged that this was “a case about whether an electrician would reasonably expect to be safe working inside a switchboard with a barrier wall near energized busbars.”

Further, the panel held that the district court didn’t abuse its discretion in denying Plaintiff’s motion to amend the final pretrial conference order. Plaintiff conceded that he strategically relied on the consumer expectations test to exclude evidence favorable to Electric Company and shifted his theory of liability only after the district court indicated that expert testimony was required for the consumer expectations test.

Although Electric Company alerted Plaintiff to the need for expert testimony, he faulted them for attempting to “dictate plaintiffs’ theory of design defect” and insisted that he was exclusively relying on the consumer expectations test.

As a result, the district court didn’t abuse its discretion in denying amendment to the pretrial order based on Plaintiff’s last-minute shift in trial strategy and ensuing prejudice to Electric Company.

 

Scantlin v. General Electric, 2017 U.S. App. LEXIS 8142 (9th Cir. May 8, 2017)