NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ADELA RAMIREZ; VALLARTA FOOD 

ENTERPRISES, INC., 

Plaintiffs-Appellants, 

 v. 

ITW FOOD EQUIPMENT GROUP, LLC, 

Defendant-Appellee. 

No. 15-55516 

D.C. No. 

2:12-cv-10023-AB-AGR 

MEMORANDUM*

Appeal from the United States District Court

for the Central District of California

Andre Birotte, Jr., District Judge, Presiding

Argued and Submitted March 10, 2017

Pasadena, California

Before: TASHIMA and NGUYEN, Circuit Judges, and MARBLEY, District 

Judge.

Adela Ramirez and her employer, Vallarta Food Enterprises, Inc. 

(collectively, “Appellants”) appeal the grant of summary judgment on their 

products liability claim arising from Ramirez’s hand being yanked into the moving 

 

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

 The Honorable Algenon L. Marbley, United States District Judge for 

the Southern District of Ohio, sitting by designation.

FILED

APR 4 2017

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 

blade of a meat grinder manufactured by Appellee ITW Food Equipment Group, 

LLC (“ITW”). Appellants also appeal the grant of ITW’s motions in limine

excluding testimony and opinions of Appellants’ experts. We have jurisdiction 

under 28 U.S.C. § 1291. We reverse.

I. The design defect claim

Appellants focus on two defects: (1) a lack of an automatic shutoff 

mechanism that stops the grinder’s blade from spinning if the lid is opened; and (2) 

a lack of a lock preventing the lid from opening while the grinder’s blade is 

spinning. We address each in turn. 

A. The automatic shutoff theory raises a manufacturing defect claim 

rather than a design defect claim 

Appellants do not dispute that the grinder’s “lid is designed to cut power 

when the lid is open,” but contend that it failed to do so on the day of the accident. 

Thus, despite being styled as a design defect claim, the automatic shutoff theory 

raises only a manufacturing defect claim. This claim fails because Appellants do 

not contend that the lid “differs from the manufacturer’s intended result or from 

other ostensibly identical units of the same product line.” Garrett v. Howmedica 

Osteonics Corp., 153 Cal. Rptr. 3d 693, 706 (Ct. App. 2013).

1

 Therefore, the

 

1 This holding does not foreclose on remand evidence that the grinder failed to 

operate on the day of the accident as intended or designed.
3 

district court was correct to reject Appellants’ automatic shutoff theory as a basis 

for a design defect claim. 

We now proceed to analyze Appellants’ design defect claim only under their lid 

lock theory.

B. The consumer-expectations test applies to the lack of a lid lock design 

defect claim

The consumer-expectations and risk-benefit tests “provide alternative means 

for a plaintiff to prove design defect and do not serve as defenses to one another,” 

meaning that Appellants can succeed under one test even if they fail under another. 

Chavez v. Glock, Inc., 144 Cal. Rptr. 3d 326, 343 (Ct. App. 2012). 

Contrary to ITW’s argument, the consumer-expectations test is “entirely 

appropriate” for design defect claims based on even “complex machinery” used by 

employees in commercial settings. Akers v. Kelley Co., 219 Cal. Rptr. 513, 519–

24 (Ct. App. 1985) disapproved on other grounds by People v. Nesler, 941 P.2d 87 

(Cal. 1997); Saller v. Crown Cork & Seal Co., 115 Cal. Rptr. 3d 151, 164–65 (Ct. 

App. 2010) (consumer-expectations test applied to design defect claim by worker 

exposed to the asbestos insulation when cleaning refineries).

The district court concluded that the consumer-expectations test does not 

apply because Appellants’ theory is too technically complex, as shown by their

reliance on expert testimony to oppose summary judgment. But the purpose of that
4 

expert testimony was to rebut ITW’s defenses of unforeseeable misuse or lack of

feasible, safer designs. While Appellants’ expert testimony strengthens their 

design defect claim, their prima facie case need not turn on such testimony. ITW 

analogizes Appellants’ theory to the chemical interaction between skin and latex 

invoked in Morson v. Superior Court, 109 Cal. Rptr. 2d 343, 357–59 (Ct. App. 

2001) or the virtual Rube Goldberg machine relied upon by the plaintiff in Soule v. 

General Motors Corp., 882 P.2d 298, 310 (Cal. 1994). Unlike in those cases, 

Appellants’ prima facie case does not turn on an understanding of how “several 

obscure components” of the grinder work. Id. 

C. ITW failed to meet its summary judgment burden under both tests

Under both the consumer-expectations and risk-benefit test, a plaintiff must 

prove that the product’s design was a “substantial factor in causing his injury.” 

Chavez, 144 Cal. Rptr. 3d at 345; compare Judicial Council of California Civil 

Jury Instruction (“CACI”) No. 1203 with CACI No. 1204. This standard requires 

“only that the contribution of the individual cause be more than negligible or 

theoretical.” Colombo v. BRP US Inc., 179 Cal. Rptr. 3d 580, 592 (Ct. App. 2014). 

Appellants “need not establish that a defendant’s product was the sole potential 

proximate cause of injury,” id., nor are they “required to disprove every possible 

alternative explanation of the injury.” Campbell v. Gen. Motors Corp., 649 P.2d 

224, 229 (Cal. 1982). 
5 

Ramirez’s testimony established causation under both tests. In opposing 

summary judgment, Appellants offered Ramirez’s testimony that her hand was 

“yanked” into the grinder’s moving blades after she opened the lid. This testimony 

is sufficient to establish causation. See Saller, 115 Cal. Rptr. 3d at 156–57, 164–65 

(worker’s testimony about his work in refineries, use of asbestos insulation, and 

dust in the air was sufficient under consumer-expectations test to prove design 

defect claim based on exposure to asbestos); Campbell, 649 P.2d at 227, 231–33

(plaintiff’s testimony that she was thrown to bus’s floor, as well as photos of the 

bus, were “sufficient evidence” to make out a “prima facie case” under both 

consumer-expectations and risk-benefit test on design defect claim based on 

absence of a grab bar). The cases cited by ITW do not suggest otherwise, as they 

involved complex theories of causation that turned on scientific expertise, see 

Stephen v. Ford Motor Co., 37 Cal. Rptr. 3d 9, 15 n.6, 17 (Ct. App. 2005), or

provide no analysis of the California substantive law that controls here, see 

Cabrera v. Cordis Corp., 134 F.3d 1418, 1423 (9th Cir. 1998).

ITW argues that Appellants cannot prove causation absent evidence that 

their proposed safety devices were feasible and would have prevented the accident. 

But the feasibility of alternative safety devices is irrelevant under the consumerexpectations test and, under the risk-benefit test, the defendant bears the burden to 

prove the lack of feasible safety devices. Chavez, 144 Cal. Rptr. 3d at 343. A
6 

plaintiff need not prove that the absent safety “device would have prevented the 

accident,” because such a rule might “enable the manufacturer to prevail on the 

basis of its failure to provide the safeguard,” contrary to “the major policy goals of 

strict liability.” Campbell, 649 P.2d at 229.

Accordingly, ITW failed to meet its burden, as the party moving for 

summary judgment, to show that Appellants cannot prove the lack of a locking lid

was a substantial factor in causing Ramirez’s injury.

Under the risk-benefit test, once Appellants establish causation, “the burden 

shifts to [ITW] to establish that the benefits of the challenged design, when 

balanced against such factors as the feasibility and cost of alternative designs, 

outweigh its inherent risk of harm.” Chavez, 144 Cal. Rptr. 3d at 343. ITW failed 

to meet this burden, and thus it was error to grant summary judgment on 

Appellants’ design defect claim under the risk-benefit test.

As for the consumer-expectations test, in addition to causation, the plaintiff 

must show that the product “failed to perform as safely as an ordinary consumer 

would expect when used in an intended or reasonably foreseeable manner.” 

Campbell, 649 P.2d at 227. The quantum of evidence needed to make out a prima 

facie case under this test is “quite low.” Chavez, 144 Cal. Rptr. 3d at 349–50. 

The district court concluded that Appellants “offered no evidence” that the 

grinder “failed to perform as safely as an ordinary consumer would expect.” But
7 

Ramirez testified that her hand was yanked into the grinder when she opened the 

lid, which is “sufficient” under the consumer-expectations test. Saller, 115 Cal. 

Rptr. 3d at 156–57, 164–65; Campbell, 649 P.2d at 227, 231–33. ITW’s decision 

to put the grinder on the market is an implied representation “that it [will] safely do 

the jobs for which it was built.” Soule, 882 P.2d at 304 (quotation omitted). Here, 

the implied representation is that the grinder will safely grind meat. And the fact 

that Ramirez lifted the lid while the grinder was operating does not defeat her case 

given that she was using the grinder in a reasonably foreseeable manner. In fact, 

ITW engineer Brian Bader conceded that Ramirez’s lifting of the lid while the 

grinder was operating was a “foreseeable misuse.” A manufacturer is liable under 

the consumer-expectations test for harm arising from “misuse and abuse of his 

product, either by the user or by third parties” that is foreseeable. Chavez, 144 Cal. 

Rptr. 3d at 347.

Because ITW failed to meet its burden, it was error to grant summary 

judgment on Appellants’ design defect claim under the consumer-expectations test.

D. ITW failed to meet its burden on its affirmative defenses

The district court erred in finding that ITW met its burden on its affirmative 

defenses that actions by Ramirez, her employer, or third parties were the causes of 

her injury. “[P]roduct misuse [i]s a defense to strict products liability only when 

the defendant prove[s] that an unforeseeable abuse or alteration of the product after 
8 

it left the manufacturer’s hands was the [s]ole reason that the product caused an 

injury.” Campbell v. S. Pac. Co., 583 P.2d 121, 124 (Cal. 1978). Ramirez’s 

knowledge that the grinder malfunctioned the day before the accident did not 

satisfy ITW’s burden because Ramirez testified that she assumed the grinder had 

been fixed and, regardless, ITW offered no evidence that her use was 

unforeseeable. See Akers, 219 Cal. Rptr. at 520–21 (affirming judgment on design 

defect claim for dockworker who was injured after being “warned by his 

superiors” not to use the “broken dockboard”). Nor can ITW prove that the 

grinder’s poor maintenance was unforeseeable, as Appellants presented complaints 

against ITW from users injured by the grinder, and “it may be foreseeable that 

workers will resort to alternative, less safe means” of maintaining a machine 

“because of the time or trouble involved using the ‘safe’ way.” DeLeon v. 

Commercial Mfg. & Supply Co., 195 Cal. Rptr. 867, 872 (Ct. App. 1983) 

(reversing summary judgment for manufacturer on design defect claim based on 

worker’s injury from cannery’s “food processing equipment”).

II. Excluding Appellants’ experts was error

The district court abused its discretion in excluding the testimony and 

opinions of Appellants’ experts. See Messick v. Novartis Pharm. Corp., 747 F.3d 

1193, 1199 (9th Cir. 2014).

Ned Wolfe, an experienced mechanical engineer, opined that a solenoid 
9 

clamp lock was an alternative, safer design used in industrial mixers, washing 

machines, and other industrial equipment to keep them closed until their spinning 

machinery comes to a stop. Although Wolfe had worked on cases involving 

blenders and food grinders and was familiar with solenoid clamp locks used in 

industrial mixers and washing machines, the district court excluded his testimony 

because he: (1) could point to no commercial kitchen equipment that uses solenoid 

clamp locks; (2) did not show that the proposed design has gained general 

acceptance in the scientific community; and (3) had no experience with solenoid 

clamp locks on grinders like the one at issue here. But a plaintiff is not required to 

show that an alternative, safer design is already used in similar products or has 

gained industry acceptance, as a product’s compliance with “industry custom or 

usage is irrelevant to the issue of defect.” Grimshaw v. Ford Motor Co., 174 Cal. 

Rptr. 348, 378 (Ct. App. 1981). Given that a plaintiff need not show an alternative, 

safer design is already used in similar products, it follows that her expert is not 

required to have experience with that safer design in such products. Otherwise, 

“there could be no first case demanding improvement of an unsafe (but widely 

accepted) product design.” Oswalt v. Resolute Indus., Inc., 642 F.3d 856, 863 (9th 

Cir. 2011).

The district court also faulted Wolfe for not conducting tests or scientific 

analysis of his proposed safer design. But the reliability of an expert’s theory turns 
10 

on whether it “can be tested,” Messick, 747 F.3d at 1197, not whether he has tested 

it himself. Wolfe’s alternative design was capable of being tested; ITW simply 

chose not to do so, despite bearing the burden under the risk-benefit test to prove

that adapting the solenoid clamp lock to the grinder was not feasible.

Nor could Wolfe be excluded for failing to subject the proposed design to 

peer review. Exclusion of experts due to lack of peer review reflects a rote, 

mechanical application of Rule 702 that this court has rejected in products liability 

cases where “[p]eer reviewed scientific literature may be unavailable because the 

issue may be too particular, new, or of insufficiently broad interest, to be in the 

literature.” Primiano v. Cook, 598 F.3d 558, 565 (9th Cir. 2010) as amended (Apr. 

27, 2010); White v. Ford Motor Co., 312 F.3d 998, 1007 (9th Cir. 2002), opinion 

amended on denial of reh’g, 335 F.3d 833 (9th Cir. 2003).

For similar reasons, it was error to exclude Appellants’ expert Douglas 

Bennett, an electrical engineer. Among other topics, Bennett testified that an 

employee’s splicing of wires in the grinder did not affect the operation of the stop 

button. This testimony was relevant to rebut ITW’s affirmative defense that such 

splicing caused Ramirez’s injuries. 

The district court excluded Bennett’s opinions because he lacked familiarity 

with the grinder “in its intended, pristine condition” and had no “experience with 

commercial food equipment.” But the “lack of particularized expertise goes to the 
11 

weight accorded [an expert’s] testimony, not to the admissibility of her opinion as 

an expert.” United States v. Garcia, 7 F.3d 885, 890 (9th Cir. 1993); Exum v. Gen. 

Elec. Co., 819 F.2d 1158, 1163 (D.C. Cir. 1987) (holding it was error to find that 

engineer who lacked expertise in “kitchen design” and had “never examined a 

kitchen of a fast food restaurant” was unqualified to testify in products liability 

action against manufacturer of industrial fryer).

REVERSED and REMANDED.