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Scantlin v. General Electric Co.

United States District Court, C.D. California

December 22, 2014

MICHAEL SCANTLIN AND ORA SCANTLIN, Plaintiffs,
v.
GENERAL ELECTRIC COMPANY, et al., Defendants

For Michael Scantlin, Ora Scantlin, Plaintiffs: James R Traut, Traut Law Offices, Santa Ana, CA.

For General Electric Company, Essco Wholesale Electric, Defendants: Clement L Glynn, Glynn and Finley, Walnut Creek, CA; James M Hanlon, Jr, Covington & Burling, San Francisco, CA; Maureen Anne Rodgers, Glynn & Finley, LLP, Walnut Creek, CA.

ORDER DENYING PLAINTIFFS' MOTION FOR LEAVE TO AMEND THE PRETRIAL CONFERENCE ORDER (DOC. NO. 231) AND GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT (DOC. NO. 238)

VIRGINIA A. PHILLIPS, United States District Judge.

On October 8, 2014, Plaintiffs Michael Scantlin and Ora Scantlin (" Plaintiffs") filed a " Motion to Proceed to Trial Under the Risk-Benefit Test, " which the Court has construed as a motion to amend the Pretrial Conference Order (" Amend Motion"). (Doc. No. 231.) On October 27, 2014, Defendant General Electric Company (" GE") filed a Motion for Summary Judgment (" MSJ"). (Doc. No. 238.) These matters came before the Court for a regular hearing on December 8, 2014. After considering the papers filed in support of, and in opposition to, the motions, and the arguments made by counsel at the hearing, Court DENIES the Amend Motion and GRANTS the MSJ.

I. BACKGROUND

A. The First Trial, Remand, and Plaintiffs' Change of Theory

Plaintiffs filed this action on March 10, 2009 in California Superior Court. (Notice of Removal (Doc. No. 1) Ex. A.) Plaintiffs allege that Michael Scantlin was seriously injured in an explosion while he was installing an industrial switchboard. Plaintiffs contend that the switchboard, which was manufactured by GE, was defectively designed.

GE removed the action to this Court on March 4, 2010. (Not. of Removal.) Plaintiffs elected to proceed solely under the risk-benefit test theory of design defect at trial. (First Trial Pretrial Conference Order (Doc. No. 106) at 2-3.)

A jury trial began on April 12, 2011. (Doc. No. 98.) After Plaintiffs rested their case, GE filed a Motion for Judgment as a Matter of Law. (Doc. No. 95.) The Court granted the motion and entered judgment in favor of GE, finding Plaintiffs had failed to prove the element of causation in their case in chief. (Doc. No. 105.) The Ninth Circuit vacated the judgment and remanded for a new trial. (Doc. No. 145; see also Scantlin v. Gen. Elec. Co., 510 F.App'x 543, 544 (9th Cir. 2013).)

Before the first trial, Plaintiffs filed a motion in limine to exclude evidence that the switchboard was approved by the Underwriters' Laboratories (" UL"), and had complied with the National Electric Code (" NEC"), and other regulations and safety rules. (Doc. No. 34.) The Court denied that motion, finding that evidence of compliance with industry standards is relevant and admissible. (April 8, 2011 Order (Doc. No. 91) at 4).

On remand, a second trial was scheduled for February 25, 2014.[1] For this second trial, Plaintiffs announced their intention to proceed under a different theory of design defect: the consumer expectation test. (Plaintiffs' Updated Memorandum of Contentions of Fact and Law (Doc. No. 173) at 1-2.) Based on this change of theory, Plaintiffs requested the Court reconsider its previous ruling regarding the admission of evidence that the switchboard was approved by UL and complied with the NEC. (Doc. No. 176.) As the introduction of industry customs or safety standards is " reversible error" when trying a case on a consumer expectation test theory, the Court granted Plaintiffs' motion for reconsideration and excluded any evidence that the switchboard was approved by UL or complied with the NEC or any other industry standards. (Minute Order Ruling on Additional Pretrial Matters (Doc. No. 203) at 2-4.)

B. The Pretrial Conference Order

At the pretrial conference on September 22, 2014, GE noted flaws in Plaintiffs' Updated Memorandum of Contentions of Fact and Law -- which also appeared in Plaintiffs' section of the proposed Pretrial Conference Order -- namely, that issues related to product design under the risk-benefit test were present, despite Plaintiffs' election to proceed solely under the consumer expectation test. The Court noted that the inclusion of anything in the Pretrial Conference Order related to the risk-benefit test appeared to be an editing error, and the discussion thereafter focused on issues related to the consumer expectation test. Counsel for Plaintiffs did not contend that they were proceeding under the risk-benefit test.[2] (See September 22, 2014 Transcript (Doc. No. 240) at 19:9-23:22.)

Additionally, after Plaintiffs announced their election of the consumer expectation theory, GE filed a brief arguing that Plaintiffs' case suffered from a fatal defect: they were required to have expert testimony to state a prima facie case but had retained no such expert. (" Def. Br. 1") (Doc. No. 208). Plaintiffs filed a brief arguing that no expert testimony was necessary. (" Pls'. Br. 1") (Doc. No. 210). The Court discussed this issue with the parties at the pretrial conference; ultimately, the Court ordered the parties to submit further briefing on the issue. (See Doc. Nos. 212 (" Def. Br. 2."), 220 (" Pls.' Br. 2"), 223.)

C. The Court Vacates the Trial Date

On October 6, 2014, the Court issued an order with respect to GE's contentions regarding the necessity of expert testimony. The Court agreed with GE that Plaintiffs were required to have expert testimony to support their theory of the case, but lacked such an expert. (" Expert Order") (Doc. No. 227). The Court invited the parties to submit a stipulated judgment pursuant to Federal Rule of Civil Procedure 50(a) in order that Plaintiffs could appeal this ruling immediately if they were so inclined. (Expert Order at 6-7.)

Later that day, the Court conducted a telephonic status conference with the parties regarding the Expert Order and the possibility of entering a stipulated judgment. (Doc. No. 232.) Also on that day, in response to the Expert Order, Plaintiffs submitted a " Second-Amended Proposed Final Pretrial Conference Order, " noting their desire to change their theory of the case from a consumer expectation theory back to a risk-benefit theory. (Doc. No. 228.)

A further telephonic status conference was held the next day. (Doc. No. 233.) At that status conference, Plaintiffs' counsel reported that his clients would not agree to a stipulated judgment. Instead, Plaintiffs' counsel suggested that the Court sign the Second-Amended Proposed Final Pretrial Conference Order and allow Plaintiffs to proceed on a risk-benefit theory, rather than a consumer expectation test theory. After considering the arguments made by the parties, the Court declined to permit Plaintiffs to amend the Pretrial Conference Order, finding that Plaintiffs had not satisfied the " manifest injustice" standard for changing the theory of the case on the eve of trial. The Court allowed GE to file this motion for summary judgment. (Doc. No. 233.)

Plaintiffs filed the Amend Motion on October 8, 2014.[3] (Doc. No. 231.)

D. GE's Motion for Summary Judgment

GE filed the MSJ on October 27, 2014.[4] Along with the MSJ, GE filed a Statement of Uncontroverted Facts and Conclusions of Law (Doc. No. 238-7), as well as the Declaration of Clement L. Glynn (Doc. No. 238-1). Glynn's Declaration, in turn, attached as exhibits four transcripts of court proceedings (Doc. Nos. 238-2 to 238-5), and excerpts of GE's Answering Brief in the previous Ninth Circuit appeal (Doc. No. 238-6).

Plaintiffs filed their Opposition (" Opp'n") to the MSJ on November 17, 2014. (Doc. No. 244.) Along with the Opposition, Plaintiffs filed: (1) the Declaration of James R. Traut (Doc. No. 244-1); (2) the Declaration of Richard Hornick, Ph.D. (Doc. No. 244-2); (3) Plaintiffs' Statement of Genuine Disputes (Doc. No. 244-3); and a Request for Judicial Notice (Doc. No. 244-4).

GE filed its Reply on November 24, 2014. (Doc. No. 245.)

E. Request for Judicial Notice

As mentioned above, Plaintiffs filed a Request for Judicial Notice (" RJN") with their Opposition to the MSJ. In the RJN, Plaintiffs request the Court take judicial notice of the Ninth Circuit's order in Scantlin, 510 F.App'x at 543, remanding this action after entry of judgment pursuant to Federal Rule of Civil Procedure 50(a). The Ninth Circuit's previous decision remanding this action is the law of the case. Judicial notice is not required. Lew v. U.S. Bank Nat. Ass'n, 2012 WL 1029227, at *1 n.1 (N.D. Cal. Mar. 26, 2012).

II. LEGAL STANDARD

A. Summary Judgment

A court shall grant a motion for summary judgment when there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The moving party must show that " under the governing law, there can be but one reasonable conclusion as to the verdict." Anderson, 477 U.S. at 250.

Generally, the burden is on the moving party to demonstrate that it is entitled to summary judgment. Margolis v. Ryan, 140 F.3d 850, 852 (9th Cir. 1998) (citing Anderson, 477 U.S. at 256-57); Retail Clerks Union Local 648 v. Hub Pharmacy, Inc., 707 F.2d 1030, 1033 (9th Cir. 1983). The moving party bears the initial burden of identifying the elements of the claim or defense and evidence that it believes demonstrates the absence of an issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

Where the non-moving party has the burden at trial, the moving party need not produce evidence negating or disproving every essential element of the non-moving party's case. Celotex, 477 U.S. at 325. Instead, the moving party's burden is met by pointing out that there is an absence of evidence supporting the non-moving party's case. Id. The burden then shifts to the non-moving party to show that there is a genuine dispute of material fact that must be resolved at trial. Fed.R.Civ.P. 56(a); Celotex, 477 U.S. at 324; Anderson, 477 U.S. at 256. The non-moving party must make an affirmative showing on all matters placed in issue by the motion as to which it has the burden of proof at trial. Celotex, 477 U.S. at 322; Anderson, 477 U.S. at 252. See also William W. Schwarzer, A. Wallace Tashima & James M. Wagstaffe, Federal Civil Procedure Before Trial § 14:144.

A genuine issue of material fact will exist " if the evidence is such that a reasonable jury could return a verdict for the non-moving party." Anderson, 477 U.S. at 248. In ruling on a motion for summary judgment, a court construes the evidence in the light most favorable to the non-moving party. Scott v. Harris, 550 U.S. 372, 378, 380, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007); Barlow v. Ground, 943 F.2d 1132, 1135 (9th Cir. 1991); T.W. Elec. Serv. Inc. v. Pac. Elec. Contractors Ass'n, 809 F.2d 626, 630-31 (9th Cir. 1987).

B. Amending the Pretrial Conference Order

" The district court is given broad discretion in supervising the pretrial phase of litigation, and its decisions regarding the preclusive effect of a pretrial order on issues of law and fact at trial will not be disturbed unless they evidence a clear abuse of discretion." Miller v. Safeco Title Ins. Co., 758 F.2d 364, 369 (9th Cir. 1985); Avila v. Willits Envtl. Remediation Trust, 633 F.3d 828, 833 (9th Cir. 2011) (" District Courts have 'broad discretion to manage discovery and to control the course of litigation under Federal Rule of Civil Procedure 16.'") Once a pretrial order has been entered, modifications are allowed " only to prevent manifest injustice." Fed.R.Civ.P. 16(e). " The district court should consider four factors in determining whether to modify the parties' pretrial order: (1) the degree of prejudice or surprise to the defendants if the order is modified; (2) the ability of the defendants to cure any prejudice; (3) the impact of the modification on the orderly and efficient conduct of the case; and (4) any degree of willfulness or bad faith on the part of the party seeking the modification." Hunt v. Cnty. of Orange, 672 F.3d 606, 616 (9th Cir. 2012) (quoting Byrd v. Guess, 137 F.3d 1126, 1132 (9th Cir. 1998)). " It is the moving party's burden to show that a review of these factors warrants a conclusion that manifest injustice would result if the pretrial order is not modified." Byrd, 137 F.3d at 1132. The Court should ordinarily allow modification if, after consideration of the four factors, " the court determines that refusal to allow a modification might result in injustice while allowance would cause no substantial injury to the opponent and no more than slight inconvenience to the court, a modification should ordinarily be allowed." United States v. First Nat'l Bank of Circle, 652 F.2d 882, 887 (9th Cir. 1981); Newark Grp., Inc. v. Dopaco, Inc., 2012 WL 1067210, at *2 (E.D. Cal. Mar. 28, 2012).

III. DISCUSSION

A. The Court's Previous Ruling Regarding the Necessity of Expert Evidence

In California, a tort claim for strict liability based on design defect can proceed under two theories: the " risk-benefit test" and the " consumer expectations test." The consumer expectations test " asks whether the product performed as safely as an ordinary consumer would expect when used in an intended and reasonably foreseeable manner" while the risk-benefit test " asks whether the benefits of the challenged design outweigh the risk of danger inherent in the design." Mansur v. Ford Motor Co., 197 Cal.App.4th 1365, 1374, 129 Cal.Rptr.3d 200 (2011) (quoting Saller v. Crown Cork & Seal Co., 187 Cal.App.4th 1220, 1231-32, 115 Cal.Rptr.3d 151 (2010)). In the first trial, Plaintiffs proceeded solely on a risk-benefit theory. (Def. Br. 1 at 2.) After remand, and beginning on December 24, 2013 -- approximately 10 months before the October 7, 2014 trial date -- Plaintiffs abandoned the risk-benefit test and gave notice they were solely relying on the consumer expectation test. (Id.)

The memorandum submitted by GE before the pretrial conference argued that, as a consequence of Plaintiffs' change in theory, Plaintiffs are required to submit evidence on how an ordinary consumer of the product at issue here would expect the product to perform. (Id. at 3.) According to GE, because the " product" is an industrial switchboard, it " is beyond the experience of lay people, [and] Plaintiffs must introduce expert testimony concerning the reasonable expectations of its ordinary consumers." (Id. (citing Lunghi v. Clark Equip. Co., 153 Cal.App.3d 485, 496, 200 Cal.Rptr. 387 (1984).)

Though " [u]sing expert testimony to demonstrate common knowledge [is] inappropriate" when considering the consumer expectations test (Mansur, 197 Cal.App.4th at 1375), expert testimony is " admissible to prove what ordinary consumers of the product actually expect when those expectations are beyond the lay experience common to all jurors." Morton v. Owens-Corning Fiberglas Corp., 33 Cal.App.4th 1529, 1537, 40 Cal.Rptr.2d 22 (1995) (emphasis added) (citing Soule v. General Motors Corp., 8 Cal.4th 548, 34 Cal.Rptr.2d 607, 882 P.2d 298 (1994)). In these circumstances, this expert testimony is " designed to educate the jury about the nature of the allegedly defective product." Id. (citing Lunghi, 153 Cal.App.3d at 496; Rosburg v. Minnesota Mining & Mfg. Co., 181 Cal.App.3d 726, 732-733, 226 Cal.Rptr. 299 (1986)).

In Lunghi, plaintiffs were the survivors of a man who was killed in a construction accident. Lunghi, 153 Cal.App.3d at 489. The decedent was crushed by a descending boom bucket from a front-end loader while trying to rescue a fellow employee who had become trapped during loader repairs. Id. The trial court refused to instruct the jury on the consumer expectations test, and instead only instructed on the risk-benefit test; the jury found there was no defect in the design of the loader. Id. at 489, 495. The plaintiffs appealed, arguing that the failure to instruct on the consumer expectations test was error. Id. at 496.

The court of appeal affirmed the trial court, finding that in order to present that theory of design defect to the jury, plaintiffs were required to " present evidence in the form of expert opinions on the reasonable expectations of consumers of the product involved" because " an ordinary consumer would not know what to expect from a piece of heavy machinery like the Bobcat loader." Id.

GE also argues that the California Supreme Court's decision in Soule is in accord with Lunghi. In Soule, the plaintiff was injured when the car she was driving collided with another vehicle. Soule, 8 Cal.4th at 556. The plaintiff sued the manufacturer of the car, alleging her vehicle's defective design caused the front wheel to break free, collapse inward, and smash the floorboard of the car into her feet, badly injuring her ankles. Id. At issue in the case was the exact angle, force, and circumstances of the collision, and the extent to which the plaintiff's vehicle crumpled inward causing her injuries. Id. at 557-58.

The California Supreme Court held the consumer expectation test was unsuited to those facts, noting that " ordinary experience and understanding [would not] inform . . . a consumer how safely an automobile's design should perform under the esoteric circumstances of the collision at issue here." Soule, 8 Cal.4th at 570. In a footnote, the court also stated that

[A]ppropriate use of the consumer expectations test is not necessarily foreclosed simply because the product at issue is only in specialized use, so that the general public may not be familiar with its safety characteristics. . . . If the expectations of the product's limited group of ordinary consumers are beyond the lay experience common to all jurors, expert testimony on the limited subject of what the product's actual consumers do expect may be proper.

Id. at 567 n.4.[5]

Plaintiffs attempt to avoid this requirement by artificially isolating one aspect of the product at issue here. They contend that the explosion causing Michael Scantlin's injuries occurred when, while he was working in the non-charged " utility" section of a switchboard, he leaned against a metal barrier between the utility section and the energized, " hot" busbars on the other side. (Pls.' Br. 1 at 2.) According to Plaintiffs, this metal barrier flexed when he leaned against it, causing it to touch the electrified busbars on the other side, which caused an explosion. (Id.) Thus, Plaintiffs contend that the design defect of the switchboard begins and ends with the function of the metal barrier, and whether the type and strength of the metal used was appropriate. (Id. at 2-3.) As all consumers understand the premise that a metal barrier separating a utility area from an electrically charged area should protect against the danger on the other side, Plaintiffs claim, no expert testimony is required. (Id. at 3.)

On the other hand, GE maintains that the switchboard as a whole is the product in question, and because most ordinary consumers do not have any experience whatsoever with a product like an industrial switchboard, expert testimony is required, under Lunghi, for Plaintiffs to state a prima facie case. (Def. Br. 1 at 3.) According to GE, this expert would answer questions such as

" would an electrician consider it safe to sit on de-energized bus bars; would an electrician considered [sic] it safe to blindly feed a conductive tool over a 7.5-foot wall into an energized compartment; [and] would an electrician consider it safe to lean six or more feet up on a wall adjacent to an energized compartment."

(Def. Br. 2 at 7.)

" In a jury case, the trial court must initially determine as a question of foundation, within the context of the facts and circumstances of the particular case, whether the product is one about which the ordinary consumer can form reasonable minimum safety expectations." Saller, 187 Cal.App.4th at 1233. The Court has already determined that " the switchboard is 'in specialized use with a limited group of consumers' and 'the expectations of the product's limited group of ordinary consumers are beyond the lay experience common to all jurors.'" (Minute Order re: the Parties' Pretrial Requests and Objections (Doc. No. 180) at 11-12.) The Court therefore concluded that " [GE] may present expert testimony concerning the knowledge and customs of electricians for the limited purposes of establishing the minimum safety expectations and the standard of care for electricians working in switchboards such as the one at issue in this case." (Id. at 12.)

The Court finds that the switchboard is not a product about which the ordinary consumer can form expectations without the assistance of expert testimony. Even though Plaintiffs attempt to focus only on the function of the barrier, this does not change the analysis. First, in order for the members of the jury to understand Plaintiffs' theory of the case, they would have to understand the positioning of the barrier vis-à-vis the switchboard's other components. And, as GE points out, Plaintiffs' theory has always focused on the switchboard as a whole. (Def. Br. 2 at 6.)

Just as in Lunghi, the industrial switchboard here is the type of product an ordinary consumer would not be familiar with, and would have no reasonable expectations about its performance, its installation, or use. Plaintiffs' argument that no expert testimony is needed to explain the workings of an industrial switchboard because jurors are likely familiar with the dangers of electricity from such ordinary activities as fixing their domestic fuse boxes, (see Pls.' Br. 2 at 3), simply fails.

Plaintiffs rely on Campbell v. Gen. Motors Corp., 32 Cal.3d 112, 184 Cal.Rptr. 891, 649 P.2d 224 (1982), to support their position that no expert testimony is necessary, but Campbell is distinguishable. There, the plaintiff was injured when the city bus she was riding on stopped suddenly, throwing her to the floor. Id. at 116. She sued the manufacturer of the bus alleging that the bus's design was defective because it lacked any handrails or guardrails to steady herself. Id. The only evidence at trial on the question of liability was the plaintiff's testimony and photographs of the bus. Id. The trial court entered a judgment of nonsuit in favor of the defendant, finding that plaintiff had not established that the bus was defectively designed. Id. at 117. The California Supreme Court reversed, finding that plaintiff had presented sufficient evidence to submit her theory of liability to the jury. Id. at 126.

The California Supreme Court also held that no expert testimony was required to submit a consumer expectation theory to the jury in that instance because " public transportation is a matter of common experience" and it would be difficult to discern what benefit expert testimony could provide. Id. Here, however, the barrier, when viewed in the context of the switchboard, is well outside the common experience of most jurors. As noted above, expert testimony would be necessary to determine how ordinary users of that product would expect it to perform.

In order to succeed on a consumer expectation test theory at trial, Plaintiffs would be required to show that the switchboard " did not perform as safely as an ordinary consumer would have expected it to perform when used or misused in an intended or reasonably foreseeable way." Judicial Council Of California Civil Jury Instruction 1203. As set forth above, Plaintiffs cannot prove this element of their case without expert testimony. Plaintiffs, by their own admission, do not have such evidence. Thus, because Plaintiffs are the non-moving party with the burden of proof at trial, GE's motion must be granted because it " need only prove that there is an absence of evidence to support the non-moving party's case." In re Oracle Corp. Sec. Litig., 627 F.3d 376, 387 (9th Cir. 2010) ( citing Celotex, 477 U.S. at 325). Accordingly, as Plaintiffs lack evidence to prove an essential element of their case, the Court GRANTS the MSJ.

B. Plaintiffs Have Failed to Show " Manifest Injustice" Would Result if Amendment of the Pretrial Conference Order Is Not Allowed

Plaintiffs next argue that the public policy encouraging resolution of cases on the merits warrants modification of the Pretrial Conference Order to allow Plaintiffs to change their theory of the case from a consumer expectations test theory to a risk-benefit test theory, on the very eve of trial. (Opp'n at 16-20.)

Though the Court is mindful that a " Pre-Trial Order is not an inexorable decree and may, under proper circumstances, be modified" (Jeffries v. United States, 477 F.2d 52, 55 (9th Cir. 1973)), it remains unconvinced that it should modify the Pretrial Conference Order in this circumstance. Plaintiffs contend that changing the Pretrial Conference Order would not be prejudicial because GE already tried this case under a risk-benefit theory in the first trial. (Amend Motion at 10-11.) As a corollary to this, Plaintiffs have repeatedly argued that such a modification would only require the Court to change a single jury instruction, substituting Judicial Council Of California Civil Jury Instruction 1203 for 1204.

This change is not as trivial as Plaintiffs would have the Court believe. Plaintiffs' change in theory bought them a tactical advantage: exclusion of testimony regarding the approval of the UL and compliance with the NEC. But that change also came at a price: the requirement of expert testimony. Based on this change of theory, GE prepared its own witnesses, retained experts, and modified its trial strategy. Plaintiffs were on notice as early as July 2012, when, in GE's brief in the Ninth Circuit, it noted that expert testimony would be required in order to prevail on a consumer expectation test theory. (Glynn Decl. Ex. 5 (Doc. No. 238-6) at 8-10 (noting that expert testimony was required under Lunghi).) Allowing Plaintiffs now to argue an entirely different theory of liability, after being on notice that expert testimony was required and acquiring none, would greatly prejudice GE.

Plaintiffs argue that GE's prejudice is minimal because it has already defended this action on a risk-benefit theory in the first trial. But that trial took place over three years ago and GE prepared for retrial of the case under Plaintiffs' announced changed theory. It would be unjust to compel GE to re-prepare for trial based on Plaintiffs' last minute change of theory following an adverse ruling.

Moreover, modification would seriously disrupt orderly and efficient conduct of the case. Plaintiffs have been advancing the consumer expectation theory of liability for nearly a year. Allowing them to change their theory at this late date would lead to a considerable delay in the proceedings. As noted by GE, the Ninth Circuit has ruled that a court does not abuse its discretion by refusing to modify a pretrial order where plaintiff changes strategies at a late stage in the litigation. (See MSJ at 12-13 (citing Eagle v. Am. Tel. & Tel. Co., 769 F.2d 541, 548 (9th Cir. 1985).)

Thus, the Court does not find that manifest injustice would result by refusing to modify the Pretrial Conference Order, and accordingly, the Court DENIES the Amend Motion.

C. Plaintiffs' Other Arguments

In their Opposition, Plaintiffs make a number of arguments contending that summary judgment would be inappropriate in this instance. The Court addresses each contention in turn.

1. Lay Opinion Not Sufficient

Plaintiffs argue that there was sufficient lay witness testimony from the previous trial to support the conclusion that the switchboard violated an ordinary consumer's safety assumptions, citing Morton. (Opp'n at 12.) In Morton, plaintiff had worked in the shipbuilding business and later developed mesothelioma, an asbestos-caused form of cancer. Morton, 33 Cal.App.4th at 1532-33. The plaintiff sued the manufacturer of the asbestos on a consumer expectations test design defect theory. Id. at 1534. The California Court of Appeal ruled that plaintiff could rely on the consumer expectations test because the defendant's product " was not in itself a complex or technical device" and because " individuals who worked with and around this product were capable of formulating minimum expectations as to its safety." Id. at 1535.

Here, however, the Court has already concluded that the switchboard is a complex or technical device, one that " is in specialized use with a limited group of consumers and the expectations of the product's limited group of ordinary consumers are beyond the lay experience common to all jurors." (Minute Order re: the Parties' Pretrial Requests and Objections at 11-12.) Thus, Morton is distinguishable.

Moreover, as GE points out, in the Lunghi case, which the Court relied upon in concluding that expert testimony is necessary, the appellate court held that lay testimony alone was insufficient when a complex piece of equipment is the product at issue. Lunghi, 153 Cal.App.3d at 496 (" Since appellants asked for the consumer expectation instruction based on the lay testimony they had presented, rather than on expert opinions, the trial judge's refusal to give the instruction was correct."). Accordingly, Plaintiffs cannot bridge their evidentiary gap with the same kind of lay testimony they adduced in the previous trial.

2. Dr. Hornick Cannot Testify Regarding the Expectations of an Ordinary User of an Industrial Switchboard

Plaintiffs also argue that their human factors expert, Dr. Richard Hornick, may submit testimony regarding what the expectations of an ordinary consumer of the switchboard would be. (Opp'n at 14.) Plaintiffs concede, however, that " Dr. Hornick will not testify about the safety expectations of a reasonable electrician . . . ." (Id. at 16.)

In any event, the Court previously ruled, after a Daubert hearing in connection with a motion in limine seeking to exclude Dr. Hornick's testimony, that Dr. Hornick would be limited to testifying about " the expected uses of the switchboard based on human behavior"; the Court came to this conclusion in part based on Plaintiffs' representation that Dr. Hornick would not opine on consumer expectations. (Minute Order Ruling on Additional Pretrial Matters at 6.) As the Court has previously limited Dr. Hornick's testimony, and because Plaintiffs have previously represented the Dr. Hornick would not testify concerning consumer expectations, this argument does not counsel against granting the MSJ.

3. GE Was Under No Obligation to Raise this Issue Prior to Trial

Finally, Plaintiffs argue that GE exhibited bad faith by waiting until a week before the pretrial conference to bring this issue to the Court's attention. (Opp'n at 4-5.) The Court disagrees.

GE's brief bringing this issue to the Court's attention was procedurally proper. GE could have waited until Plaintiffs had rested before making its argument that expert testimony was required. As the Court noted during the telephonic status conferences and in the Expert Order, it would be an imprudent use of the Court's resources and the jurors' time to try a case in which Plaintiffs could not prevail as a matter of law.

Plaintiffs have had an ample opportunity to be heard on this subject; they have submitted at least three briefs contending that expert testimony is not necessary. The Court has listened to and considered their arguments at the pretrial conference, during telephonic status conferences, and at the hearing on the pending motions. None of the arguments made by Plaintiffs on any of those occasions have convinced the Court that expert testimony would not be required in this instance.

IV. CONCLUSION

For the reasons stated above, the Court DENIES the Amend Motion and GRANTS the MSJ. The Court enters judgment in favor of GE.

IT IS SO ORDERED.

JUDGMENT

TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:

Pursuant to the Order filed herewith, IT IS ORDERED AND ADJUDGED that judgment be entered in favor of Defendant General Electric Company, that Plaintiffs take nothing on their Complaint, and that Plaintiffs' action be DISMISSED WITH PREJUDICE. The Court orders that such judgment be entered.


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