JEFFREY LUDLOW and KATHELYN LUDLOW v. Lowe’s Home Centers, LLC

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JEFFREY LUDLOW and KATHELYN
LUDLOW,
Plaintiffs-Appellants,
v.
LOWE’S HOME CENTERS, LLC,
Defendant-Appellee.
Nos. 14-16869
14-17236
D.C. No. 1:12-cv-00476-KSC
MEMORANDUM*
Appeal from the United States District Court
for the District of Hawaii
Kevin S. Chang, Magistrate Judge, Presiding
Argued and Submitted February 15, 2018
Honolulu, Hawaii
Before: O’SCANNLAIN, CLIFTON, and IKUTA, Circuit Judges.
Jeffrey and Kathelyn Ludlow appeal the district court’s rulings denying
them damages for loss of use and diminution in value to their home resulting from
Lowe’s Home Centers, LLC’s installation of a refrigerator. We have jurisdiction
under 28 U.S.C. § 1291.
FILED
FEB 26 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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We affirm the district court’s decision to deny the Ludlows’ claim for
damages resulting from loss of use and diminution in value because the Ludlows
failed to present competent evidence to support such damages. First, the district
court did not abuse its discretion in striking the testimony of the Ludlows’ expert
witness, John Ferguson, because the court’s determination that he was not qualified
as an expert under Federal Rule of Evidence 702 was supported by the record. See
Ollier v. Sweetwater Union High Sch. Dist., 768 F.3d 843, 860 (9th Cir. 2014).
Likewise, the court did not abuse its discretion in striking specified paragraphs
from the declaration of the Ludlows’ contractor, Matthew Boone. The paragraphs
constituted expert testimony, and the court had previously excluded Boone from
testifying as an expert because the Ludlows failed to timely disclose him. Without
the excluded testimony of Ferguson and Boone, the Ludlows could not show their
damages with “reasonable certainty.” Exotics Hawaii-Kona, Inc. v. E.I. Du Pont
De Nemours & Co., 116 Haw. 277, 292 (2007); Uyemura v. Wick, 57 Haw. 102,
111 (1976) (quoting Ferreira v. Honolulu Star-Bulletin, Ltd., 44 Haw. 567, 576
(1960)).
AFFIRMED
2

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