United States v. 2020-09-11 | 18-56378 | TOM FINDLEY V. PG&E | nonprecedential | memorandum disposition |

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

TOM FINDLEY; KIMBERLY BLOWNEY,

Plaintiffs-Appellants,

v.

PACIFIC GAS & ELECTRIC COMPANY,
a California corporation; DOES, 1 through
10, inclusive,

Defendants-Appellees.

No. 18-56378

D.C. No. 5:16-cv-00677-DMG-KK

MEMORANDUM
*

Appeal from the United States District Court
for the Central District of California
Dolly M. Gee, District Judge, Presiding

Submitted September 8, 2020
**

Before: TASHIMA, SILVERMAN, and OWENS, Circuit Judges.

Kimberly Blowney appeals pro se from the district court’s summary
judgment in her 42 U.S.C. § 1983 action alleging Fourteenth Amendment claims
stemming from alleged exposure to elevated levels of arsenic and uranium. We

*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.

**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
FILED

SEP 11 2020

MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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have jurisdiction under 28 U.S.C. § 1291. We review de novo. Stephens v. Union
Pac. R.R. Co., 935 F.3d 852, 854 (9th Cir. 2019). We affirm.
The district court properly granted summary judgment because Blowney
failed to raise a genuine dispute of material fact as to whether elevated levels of
arsenic or uranium had the capacity to cause her alleged injuries, and whether her
alleged injuries resulted from her exposure to elevated levels of arsenic or uranium.
See Harper v. City of Los Angeles, 533 F.3d 1010, 1026 (9th Cir. 2008) (“In a
§ 1983 action, the plaintiff must [] demonstrate that the defendant’s conduct was
the actionable cause of the claimed injury.”); In re Hanford Nuclear Rsrv. Litig.,
292 F.3d 1124, 1133-34 (9th Cir. 2002) (in a toxic tort case, plaintiff must
demonstrate general causation, “whether the substance at issue had the capacity to
cause the harm alleged,” and specific causation, “whether a particular individual
suffers from a particular ailment as a result of exposure to a substance”).
The district court did not abuse its discretion by sustaining defendant’s
objections to certain evidence submitted by Blowney in opposition to summary
judgment because such evidence constituted inadmissible lay opinion on matters
requiring scientific, technical, and specialized knowledge and neither plaintiff nor
the other declarants were qualified as experts on such matters under Federal Rule
of Evidence 702. See Fed. R. Evid. 701, 702; Kumho Tire Co., Ltd. v. Carmichael,
526 U.S. 137, 141 (1999) (trial court’s gatekeeping obligation applies to all types

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of expert testimony); Nationwide Transp. Fin. v. Cass Info. Sys., Inc., 523 F.3d
1051, 1058 (9th Cir. 2008) (district court’s decision on admissibility of lay opinion
testimony “will be overturned only if it constitutes a clear abuse of discretion”
(citation and quotation marks omitted)).
The district court did not abuse its discretion by ruling that Blowney failed
to submit expert testimony on causation because Blowney failed to disclose any
expert witnesses in her Federal Rule of Civil Procedure 26(a)(2) expert disclosures.
See Fed. R. Civ. P. 26(a)(2); King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987),
overruled on other grounds by Lacey v. Maricopa County, 693 F.3d 896 (9th Cir.
2012) (en banc) (pro se litigants are held to same procedural rules as other
litigants). Contrary to her contentions, Blowney did not request an extension of
time for expert discovery and the district court did not exclude any of her proffered
expert testimony on the basis of Federal Rule of Civil Procedure 37(c).
We reject as meritless and unsupported by the record Blowney’s contentions
that the district court violated her due process rights, was biased, or failed to
conduct a de novo review of the magistrate judge’s Report & Recommendation.
We do not consider matters not specifically and distinctly raised and argued
in the opening brief, or arguments and allegations raised for the first time on
appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).
All pending motions and requests are denied.

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This case remains administratively closed as to appellant Tom Findley. See
Docket Entry Nos. 15, 20.
AFFIRMED.