The United States Supreme Court refused this month to review a ruling by the Ninth Circuit Court of Appeals that a plaintiff’s expert, a non-party, could not appeal a district court ruling which had excluded his testimony.
In Newkirk v. Conagra Foods, (Ninth Circuit, 9-5-2012), 493 Fed.Appx. 862 (2012) an unpublished opinion, plaintiff’s expert, Dr. David Egiman had sought review of the dismissal of his appeal concerning the exclusion of his testimony from a suit claiming that defendant’s popcorn caused a consumer to suffer severe respiratory damage. Egiman claimed in his appeal that the district court in excluding his testimony abused its discretion by using defamatory language in its order. The Court of Appeals pointed out that a non-party has appellate standing only when the appellate, though not a party, participated in the district court proceedings. The court noted that the expert’s participation in the district court consisted of filing reports in his capacity as an expert. He did not file papers objecting to the order excluding his testimony and he did not argue the legal merits of the motion. Since he did not participate in the district court proceedings he did not have standing to appeal and because the court lacked jurisdictions, the appeal was dismissed.