NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BREEONA OSTEEN, as an individual, 

Plaintiff-Appellant, 

 v. 

BAYER CORPORATION; et al., 

Defendants-Appellees.

No. 16-56381 

D.C. No. 

2:15-cv-05993-R-PJW 

MEMORANDUM*

Appeal from the United States District Court

for the Central District of California

Manuel L. Real, District Judge, Presiding

Submitted June 4, 2018**

Pasadena, California

Before: FISHER and OWENS, Circuit Judges, and MOLLOY,*** District Judge.

Breeona Osteen appeals from the district court’s summary judgment in her 

action against Bayer Corporation alleging injuries arising from her consumption of 

 

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

except as provided by Ninth Circuit Rule 36-3.

** The panel unanimously concludes this case is suitable for decision 

without oral argument. See Fed. R. App. P. 34(a)(2).

*** The Honorable Donald W. Molloy, United States District Judge for 

the District of Montana, sitting by designation.

FILED

JUN 11 2018

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 

aspirin. As the parties are familiar with the facts, we do not recount them here. 

We affirm.

Osteen concedes that if she consumed the amount of aspirin she stated in her 

interrogatory responses and at her deposition – which was well below the 

maximum recommended dose – she is unable to show that Bayer is liable. 

Osteen’s bald assertion that, given her poor memory of the events leading up 

to her hospitalization, she may have consumed an amount of aspirin at or near the 

maximum recommended dose is insufficient to raise a genuine issue of material 

fact and defeat summary judgment. See FTC v. Stefanchik, 559 F.3d 924, 929 (9th 

Cir. 2009) (“In order to avoid summary judgment, a non-movant must show a 

genuine issue of material fact by presenting affirmative evidence from which a jury 

could find in [her] favor. A non-movant’s bald assertions or a mere scintilla of 

evidence in [her] favor are both insufficient to withstand summary judgment.” 

(citations omitted)). 

We are also unpersuaded by Osteen’s argument that, even if she overdosed, 

Bayer is liable for failing to provide adequate warnings because it is foreseeable 

that consumers would misuse the aspirin and take more than the maximum 

recommended dose. Viewing the expert and medical evidence in Osteen’s favor, 

she took a large overdose, not an amount just above the maximum recommended 

dose. It is obvious that that there is a risk of serious harm for taking far more than 
3 

the recommended dose of aspirin without the guidance of a doctor. See Johnson v. 

Am. Standard, Inc., 179 P.3d 905, 911-12 (Cal. 2008) (“California law . . .

recognizes the obvious danger rule, which provides that there is no need to warn of 

known risks under either a negligence or strict liability theory.”).

The district court’s invocation of the “sham affidavit” rule is irrelevant. See 

Van Asdale v. Int’l Game Tech., 577 F.3d 989, 998-99 (9th Cir. 2009) (discussing 

sham affidavit rule). As explained above, even considering all of the evidence, 

Osteen has failed to raise a genuine issue of material fact. 

AFFIRMED.

1

 

1 Bayer’s opposed motion for leave to file a sur-reply (Dkt. No. 54) is denied.
Breeona Osteen v. Bayer, A.G., et al., No. 16-56381

MOLLOY, District Judge for the District of Montana, concurring in the judgment:

Summary judgment requires that “[t]he evidence of the non-movant is to be 

believed, and all justifiable inferences are to be drawn in h[er] favor.” Anderson v. 

Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). Where, as here, the non-movant 

carries the burden of proof, the question is not whether she has a good case, but if 

she can establish a genuine dispute of material fact as to an essential element of 

that case. See Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Fed. R. Civ. P. 

56(a). Accordingly, “[t]he proscription against fact-finding on summary judgment 

is a deceptively difficult mandate.” Easley v. City of Riverside, No. 1655941, ___

F. 3d ___ , *5 n.1 (9th Cir. 2018) (Pratt, J. dissenting). 

This case presents a close call. It is undisputed that Osteen had a toxic level 

of aspirin byproduct in her bloodstream. Less clear is the number of pills she took 

in the days prior to her injury. However, that dispute matters on summary 

judgment only if it is material. While Osteen asserts she may have taken at or near 

the recommended dosage, that assertion is belied by the medical evidence—

Osteen’s salicylate level of 58.2 mg/dL at the time of admission and the testimony 

of the medical experts—and likely does not create an issue of material fact. In my 

view close calls should probably go to the plaintiff, but I am not so persuaded here 

that it merits reversal.

FILED

JUN 11 2018

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS