NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MARK MONJE and BETH MONJE, individually and on behalf of their minor son R.M.,

Plaintiffs

- Appellants,

v. SPIN MASTER INCORPORATED, a Delaware corporation; et al.,

Defendants

- Appellees. No. 15

- 16480

D.C. No. 2:09

- cv
- 01713

- JJT

MEMORANDUM *

MARK MONJE and BETH MONJE, individually and on behalf of their minor son R.M.,

Plaintiffs

- Appellees,

v. SPIN MASTER INCORPORATED, a Delaware corporation; et al.,

Defendants,

and No. 15

- 16567

D.C. No. 2:09

- cv
- 01713

- JJT

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

- 3. 

# FILED

FEB 14 2017

MOLLY C . DWYER, CLERK U.S. COURT OF APPEAL S2

MOOSE ENTERPRISES PROPRIETARY LIMITED, an Australian company,

Defendant

- Appellant.

Appeal from the United States District Court for the District of Arizona John Joseph Tuchi, Di strict Judge, Presiding Argued and Submitted February 1, 2017 U niversity of Arizona

– Tucson , Arizona Before: LEAVY, MURGUIA, and FRIEDLAND, Circuit Judges.
This appeal follows an eight

- day jury trial that resulted in a verdict for

Plaintiff s
- Appellants Mark and Beth Monje. The Monjes sought and were
awarded compensatory damages on behalf of their minor son, R.M., for injuries he

sustained after i ngest ing “Aqua Dots,” toy beads designed , distributed , and sold by

Defendants

- Appellees Spin Mast er Inc., Spin Master Ltd., Moose Enterprise s Proprietary , Ltd., and Toys “R ” Us, Inc. (collectively, “Defendants”)

. The Monjes
appeal several pretrial rulings that prohibited them from seeking additional
damages at trial. We have jurisdiction under 28 U. S.C. § 1291, and we affirm. 1

1. The district court did not err in granting partial summary judgment for

1 Because we affirm all of the rulings challenged by the Monjes , we need not address the issues raised in the contingent cross

- appeal filed by Moose Enterpr ises.3

Defendants on punitive damages. To recover punitive damages in Arizona, a
plaintiff must show that the defendant acted with an “evil mind .” Thompson v.

Better

- Bilt Alum inum Prods. Co. , 832 P.2d 203, 209 (Ariz. 1992) (in banc). An

“evil mind” requires either intentional conduct or conscious disregard of an
unjustifiably substantial risk of harm to others

. Id.
There is no evidence from which a reasonable juror could conclude that

Defendants acted with an “evil mind.” Defendants were not aware that Aqua Dots
posed a toxicological risk before R.M.’s ingestion. D efendants submitted the
product for testing, and in dependent laboratories repeatedly certified the toy as
compliant with global and U.S. safety standards. The Monjes contend Defendants
could have discovered that Aqua Dots were toxic if they had performed more or
different testing, but “negligence, or even gross negligence” cannot establish the
requisite “evil mind.” Volz v. Coleman Co. , 748 P.2d 1191, 1195 (Ariz. 1987) (in
banc). Accordingly, Defendants were entitled to judgment as a matter of law on
the issue of punitive damages.

2. The district co urt did not abuse its discretion in holding that Mr. Monje
was judicially estopped from asserting claims for loss of consortium, emotional
distress, and R.M.’s past and future medical expenses. See Hamilton v. State Farm4

Fire & Cas. Co. , 270 F.3d 778, 782 (9th Cir. 2001) (stating that the district court’s
application of the doctrine of judicial estoppel to the facts of a case is reviewed for
abuse of discretion). Mr. Monje omitted his claims in this action from the asset
disclosure schedule in his Chapter 7 bankruptcy proceeding. A party is judicially
estopped from asserting a cause of action that was not disclosed in a previous
bankruptcy proceeding. Id.
Mr. Monje seeks to escape that well

- established rule by claiming that his

omission was inadverte nt . The district court found Mr. Monje’s claim of

inadvertence to be conclusory and not credible ; that determination wa s not illogical

or unreasonable. 2 Mr. Monje also argues that barring his claims will deprive his

innocent creditors of a potential source of recovery. Given that the integrity of the

entire bankruptcy system is undermined when debtors fail to fully and honestly
disclose their assets, Hamilton , 270 F.3d at 78 5 , the district court did not abuse its

2 Inadvertence also fails to explain Mr. Monje’s failure to reopen the bankruptcy case as soon as Defendants raised judicial estoppel. In fact, Mr. Monje did not move to reopen the bankruptcy case until nearly five months after the district court’ s adverse judicial estoppel ruling. In light of those circumstances, the district court did not abuse its discretion by refusing relief from its judicial estoppel ruling after Mr. Monje reopened the bankruptcy case. See Harvest v. Castro , 531 F.3d 737, 7 41 (9th Cir. 2008) (stating that Rule 60(b) motions for relief from judgment are reviewed for abuse of discretion).5

discretion by concluding that competi ng policy interests weighed in favor of
applying the doctrine of judicial estoppel.
To the extent the Monjes are attempting to challenge the district court’s
denial of the bankruptcy trustee’s motion to intervene or to assert claims on behalf

of the b ankruptcy creditors, they lack standing to do so. See Estate of Spirtos v.
One San Bernardino Cty. Super. Ct. Case Numbered SPR 02211 , 443 F.3d 1172,

1175

- 76 (9th Cir. 2006) ( holding that the trustee alone has standing to assert claims

on behalf of a bank ruptcy estate).

3. The district court did not abuse its discretion by excluding the Monjes’
expert witness from opining that Aqua Dots caused R.M. to suffer permanent brain
injuries

. See Stilwell v. Smith & Nephew, Inc. , 482 F.3d 1187, 1191 (9th Cir. 2007)
( stating that a district court’s decision to exclude expert testimony is reviewed for
abuse of discretion). The Monjes’ expert witness advanced two causation theories.
One theory was not disclosed until the expert’s deposition and was excluded as a

discov ery sanction for untimely disclosure. 3 The other theory was excluded as

3 The Monjes later tried to revive this theory under a different name ; however characterized , the theory was not disclosed in the expert’s report , and it was not an abuse of discretion to impose the attendant automatic discovery sanction

. See Goodman v. Staples The Office Superstore, LLC , 644 F.3d 817, 827 (9th Cir. 2011); accord Fed. R. Civ. P. 37(c)(1)

.6

unreliable after the expert witness unambiguously disavowed the theory at his
deposition, stating repeatedly and explicitly that there was no supporting evidence

.
It was well within the district court’s broad discretion to exclude both theories

. See
Kumho Tire Co., Ltd. v. Carmichael , 526 U.S. 137, 142 (1999).

AFFIRMED.