Monique Hernandez v. City of Beaumont

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MONIQUE HERNANDEZ,
Plaintiff,
v.
CITY OF BEAUMONT,
Defendant,
-------------------------------------------
CITY OF BEAUMONT,
Third-party-plaintiff-
Appellant,
v.
PIEXON AG; BART BACOLINI,
Erroneously Sued As Barton Peter
Bacolini,
Third-party-defendants-
Appellees,
and
No. 16-56689
D.C. No.
5:13-cv-00967-DDP-DTB
MEMORANDUM*
FILED
JUL 23 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.

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IBS SIGMA, INC.,
Third-party-defendant.
Appeal from the United States District Court
for the Central District of California
Dean D. Pregerson, District Judge, Presiding
Argued and Submitted June 4, 2018
Pasadena, California
Before: FISHER and OWENS, Circuit Judges, and MOLLOY,** District Judge.
The City of Beaumont appeals from the district court’s summary judgment
order in favor of Piexon AG and Bart Bacolini.1 We have jurisdiction under
28 U.S.C. § 1291, and we review a grant of summary judgment de novo. See
Lopez-Valenzuela v. Arpaio, 770 F.3d 772, 777 (9th Cir. 2014) (en banc). We
affirm.
The City brings product defect claims arising from a police stop, during
which one of its officers, Enoch Clark, permanently blinded Monique Hernandez
by deploying Piexon’s JPX Jet Protector pepper spray gun approximately one foot
** The Honorable Donald W. Molloy, Senior Judge, United States District
Court for the District of Montana, sitting by designation.
1 The parties agree the summary judgment decision was intended to dispose
of all claims against all served parties, and the district court’s judgment is therefore
final.
2

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from her head. A manufacturing, design or warning defect “does not become an
issue for the jury . . . unless causation is first established.” Browne v. McDonnell
Douglas Corp., 698 F.2d 370, 371 n.1 (9th Cir. 1982). On the facts of this case, a
jury could not reasonably infer that the JPX’s alleged defects or Piexon’s
representations about the device substantially contributed to Hernandez’s injuries.
See Endicott v. Nissan Motor Corp., 141 Cal. Rptr. 95, 100–01 (Ct. App. 1977)
(where the plaintiff’s operation of his car “was the overriding cause of the serious
accident” that injured him, no expert could testify that the rupture of his seatbelt
contributed to his injuries).
1. The City argues the JPX is defectively manufactured because it
deploys above its advertised velocity of 590 feet-per-second, and from there it is “a
matter of simple physics” that “[i]ncreased velocity results in increased kinetic
energy at impact.” There is, however, no evidence either that Officer Clark’s JPX
deployed at a velocity above the advertised 590 feet-per-second or that, if it did,
the additional velocity substantially contributed to Hernandez’s injury as compared
to a liquid payload deploying at the advertised velocity from the same distance.
The City’s expert testified he did not know whether Hernandez would have
suffered identical injuries had the JPX performed at the same velocity represented
in its user manual and safety materials. See Stephen v. Ford Motor Co., 37 Cal.
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Rptr. 3d 9, 16–17 (Ct. App. 2005) (where expert testimony was speculative, it
could not constitute substantial evidence in support of causation).
2. The City argues the JPX is defectively designed because it deploys its
payload at velocities high enough to incapacitate a person from a distance, but,
during intense police encounters at close proximity, can severely injure or kill a
target. This is a core function of the JPX, which is marketed as a mid-range “less
lethal” weapon for use between five and 23 feet, but not at close range. Although
the City’s argument — that the JPX should be able to deploy from shorter ranges
with less impact to a target — is facially reasonable, the City has failed to show the
JPX’s design substantially contributed to Hernandez’s injuries in this case. Given
the substantial evidence that Officer Clark was repeatedly warned about the severe
danger of deploying the JPX from close range, combined with the fact that Officer
Clark nonetheless deployed the JPX in the forbidden manner, a jury could not
reasonably attribute Hernandez’s injury to the JPX’s design rather than to Officer
Clark’s independent decisionmaking.
3. The City also argues Piexon failed to warn of the particular danger of
the JPX, instead providing generalized, vague warnings of “serious injury.” There
is no evidence, however, that stronger warnings would have altered Officer Clark’s
conduct or use of the device. See Motus v. Pfizer, Inc., 358 F.3d 659, 661 (9th Cir.
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2004); Ramirez v. Plough, Inc., 863 P.2d 167, 177 (Cal. 1993) (holding there was
“no conceivable causal connection” between the inadequate warning and the
plaintiff’s injury where the warning was in a language the plaintiff did not speak or
read); cf. Bunch v. Hoffinger Indus., Inc., 20 Cal. Rptr. 3d 780, 799–800 (Ct. App.
2004) (reviewing testimony from multiple witnesses suggesting a more forceful
warning on a swimming pool liner would have prevented a child from diving in
and suffering paralysis). The City does not dispute that Officer Clark received
training on the specific uses of the JPX and knew close-range deployment could
cause serious eye injuries, as Piexon’s materials warned. Thus, even assuming
Piexon’s warnings were not sufficiently specific, they are not legally inadequate
absent evidence that Clark would have acted differently with more specific
information.
4. Similarly, even if Piexon’s representations about velocity and kinetic
impact are both false and material, there is no evidence that Officer Clark relied on
those representations. Unlike in Hauter v. Zogarts, 534 P.2d 377, 381–83 (Cal.
1975), where the injured plaintiff testified that he relied on the safety assurances of
the manufacturer, there is no evidence Officer Clark read the JPX user manual, and
the user presentation from his five-hour training course never mentions the “kinetic
impact” of the device. See Rest. 2d of Torts § 402B cmt.j.
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5. The City objects to Piexon’s use of certain evidence that may be
inadmissible at trial under the Public Safety Officers Procedural Bill of Rights
(POBRA), Cal. Gov’t Code §§ 3300–13. Neither we nor the district court relied on
that evidence, and we therefore leave the district court’s evidentiary ruling
undisturbed.
AFFIRMED.
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