Jason Scott Theis v. Graco, Inc.

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JASON SCOTT THEIS,
Plaintiff-Appellant,
v.
GRACO, INC.,
Defendant-Appellee.
No. 17-56723
D.C. No.
2:17-cv-02354-SVW-FFM
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
Stephen V. Wilson, District Judge, Presiding
Argued and Submitted March 8, 2019
Pasadena, California
Before: WARDLAW and BENNETT, Circuit Judges, and CARDONE,** District
Judge.
Jason Theis appeals the district court’s grant of summary judgment in favor
of Graco Inc. on his products liability manufacturing defect claim. We have
jurisdiction pursuant to 28 U.S.C. § 1291. We affirm.
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The Honorable Kathleen Cardone, United States District Judge for the
Western District of Texas, sitting by designation.
FILED
MAR 18 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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The district court correctly concluded that there is no genuine issue of
material fact as to whether the allegedly missing check ball in Theis’s Probler P2
spray gun caused his accident, a required element of his manufacturing defect
claim. See Nelson v. Superior Court, 144 Cal. App. 4th 689, 695 (2006). Theis
concedes that California law requires him to establish causation through expert
testimony because the mechanics, construction, and operation of a Probler P2 spray
gun are “sufficiently beyond common experience.” Carson v. Facilities Dev. Co.,
36 Cal. 3d 830, 844 (1984). Theis seeks to serve as his own expert. However,
even if Theis could qualify as an expert witness, his proffered expert testimony
concerning his independent experiments fails to meet the Daubert standard in
accordance with Federal Rule of Evidence 702. See Kumho Tire Co. v.
Carmichael, 526 U.S. 137, 141, 147–49 (1999). As the experiments have
“unsubstantiated and undocumented” results, have not been tested by anyone other
than Theis, and were conducted using an unknown methodology, they cannot serve
as the basis of expert testimony provided to the trier of fact. Cabrera v. Cordis
Corp., 134 F.3d 1418, 1423 (9th Cir. 1998); see also Gen. Elec. Co. v. Joiner, 522
U.S. 136, 146 (1997) (“[N]othing in either Daubert or the Federal Rules of
Evidence requires a district court to admit opinion evidence that is connected to
existing data only by the ipse dixit of the expert.”).
Without the required expert testimony, Theis has proffered insufficient

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evidence of causation. Federal Rule of Civil Procedure Rule 56(c) therefore
mandates the entry of summary judgment against Theis for “fail[ing] to make a
showing sufficient to establish the existence of an element essential to [his] case.”
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
AFFIRMED.

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