Mark A. Holum, an individual v. EXTENDICARE HOMES, INC., a corporation

* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARK A. HOLUM, an individual,
Plaintiff - Appellant,
v.
EXTENDICARE HOMES, INC., a
corporation; EXTENDICARE HEALTH
SERVICES, INC, a corporation;
EXTENDICARE HEALTH FACILITIES,
INC., a corporation,
Defendants - Appellees.
No. 09-35496
D.C. No. 2:08-cv-00081-EFS
MEMORANDUM *
Appeal from the United States District Court
for the Eastern District of Washington
Edward F. Shea, District Judge, Presiding
Submitted April 9, 2010 **
Seattle, Washington
Before: GOODWIN, HAWKINS and N.R. SMITH, Circuit Judges.
FILED
APR 14 2010
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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Mark Holum appeals summary judgment in favor of his employer,
Extendcare Homes, Inc. (“Extendcare”). Holum, a registered nurse, seeks to
recover for injuries he received when a patient at a skilled nursing facility assaulted
him at work. Holum contends that he tendered a triable issue under Washington
law whether Extendcare acted with deliberate intent to injure him, and that the
district court erred in striking statements from the record and in failing to certify a
question to the Washington Supreme Court. We affirm.
The district court did not err in granting summary judgment for Extendcare.
Washington’s Industrial Insurance Act generally precludes employee recovery
outside of the workers’ compensation scheme for on-the-job injuries, Wash. Rev.
Code § 51.04.010, with an exception permitting tort recovery “[i]f injury results to
a worker from the deliberate intention of his or her employer to produce such
injury,” Wash. Rev. Code § 51.24.020. An employer acts with deliberate intention
if “the employer had actual knowledge that an injury was certain to occur and
willfully disregarded that knowledge.” Birklid v. Boeing Co., 904 P.2d 278, 285
(Wash. 1995). Here, viewing the evidence in the light most favorable to Holum,
nursing staff had warned Extendcare management that mentally ill residents posed
a danger to residents and staff, and the patient who assaulted Holum had exhibited
violent behavior on three prior occasions. That evidence establishes only that

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Extendcare knew about a risk of injury; it does not suggest that it knew an injury
was certain to occur. See Vallandigham v. Clover Park Sch. Dist. No. 400, 109
P.3d 805, 811 (Wash. 2005) (“Disregard of a risk of injury is not sufficient to meet
the first Birklid prong; certainty of actual harm must be known and ignored”).
Summary judgment was therefore proper.
Nor did the district court abuse its discretion in striking portions of three
registered nurses’ statements. When reviewing evidentiary rulings in the context
of summary judgment motions, “we must affirm the district court unless its
evidentiary ruling was manifestly erroneous and prejudicial.” Orr v. Bank of
America, 285 F.3d 764, 773 (9th Cir. 2002). Here, however, the ruling was
neither. Holum argues that the nurses’ professional qualifications justify their
statements, but those qualifications do not obviate the need to comply with the
rules of evidence. Moreover, because the stricken statements would not be enough
to overcome Extendcare’s summary judgment motion, the ruling was not
prejudicial. See Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir.
2007) (“Conclusory, speculative testimony in affidavits and moving papers is
insufficient to raise genuine issues of fact and defeat summary judgment”).
Finally, the district court did not err in declining to certify a question to the
Washington Supreme Court. Holum argues that it is unclear whether Washington

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law requires an analysis of whether workers had options to reduce the risk of
injury. Washington law, however, is sufficiently clear, and the district court did
not abuse its discretion in resolving the issues without resort to certification.
AFFIRMED.

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