876 F.3d 1199

9th Cir.

2017

Silken BROWN; Mario De La Rosa, individually and on behalf of other members of the general public similarly situated and as aggrieved employers pursuant to the Private Attorneys General Act (“PAGA“), Plaintiffs-Appellants, v. CINEMARK USA, INC.; Century Theatres, Inc., Defendants-Appellees.

No. 16-15377

United States Court of Appeals, Ninth Circuit

Filed December 7, 2017

1199-1201

that if the terms used by an expert witness do not have a specialized meaning in law and do not represent an attempt to instruct the jury on the law, or how to apply the law to the facts of the case, the testimony is not an impermissible legal conclusion. See FED. R. EVID. 702(a), 704(a).

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Here, expert testimony was needed to assist the jury. Dr. Chavez‘s testimony was helpful because a lay jury would not have the requisite knowledge to evaluate whether the dosage, mix, and course of narcotics prescribed by Diaz were medically appropriate for the conditions being complained of by his patients. Dr. Chavez‘s opinions were based on a review of the prescriptions for individual patients, and while he employed phrases that also appear in the elements of § 841(a)(1), such as “outside the usual course of medical practice” and “legitimate medical purpose,” these phrases were used in their ordinary, everyday sense and do not “have a separate, distinct and specialized” legal significance apart from common parlance, . Dr. Chavez did not substitute his judgment for the jury‘s; he provided a professional opinion about whether a course of conduct comported with the standard of care prevalent in the medical community.

In the context of the case, Dr. Chavez‘s testimony was no doubt persuasive to the jury, but that is because it was uncontradicted and consistent with a great deal of other uncontradicted evidence. Diaz did not proffer a competing expert opinion. Had he presented such testimony, it would have been for the jury to weigh the experts’ competing opinions concerning the medically acceptable standard for prescribing controlled substances to the people who sought them from Diaz.

In sum, Dr. Chavez‘s expert testimony passed muster under Rules 702 and 704, and the district court did not plainly err by admitting it into evidence.

CONCLUSION

We affirm Diaz‘s conviction. For the reasons stated in the concurrently filed memorandum disposition, we vacate his sentence and remand to the district court for resentencing.

Conviction AFFIRMED; Sentence VACATED and REMANDED for resentencing.

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Liana Carter (argued), Katherine Kehr, Robert Drexler, and Glenn Danas, Capstone Law APC, Los Angeles, California, for Plaintiffs-Appellants.

Emily B. Vicente (argued) and M. Brett Burns, Hunton & Williams LLP, Los Angeles, California, for Defendants-Appellants.

Before: SIDNEY R. THOMAS, Chief Judge, and STEPHEN REINHARDT and KATHLEEN M. O‘MALLEY,^* Circuit Judges.

ORDER

Defendants have moved to dismiss this case for lack of appellate jurisdiction under 28 U.S.C. § 1291, in light of the Supreme Court decision in Microsoft Corp. v. Baker, 582 U.S. ___, 137 S.Ct. 1702, 198 L.Ed.2d 132 (2017), because Plaintiffs voluntarily settled some of their claims. We deny the motion.

I

We begin with a short procedural history. Silken Brown filed a Class Action Complaint against Defendants Cinemark USA, Inc. and Century Theatres, Inc. alleging several wage and hour claims. Defendants removed the case, and it was consolidated with similar pending actions by the district court, including one filed by Mario De La Rosa.

The district court dismissed Brown‘s direct wage statement claim and denied class certification of Plaintiffs’ meal and rest break claims, reporting pay claims, off-the-clock work claims, derivative wage statement claims, and direct wage statement claims. Plaintiffs’ remaining individual claims were set for trial. Defendants filed a summary judgment motion on the remaining claims. The district court issued a tentative ruling, which proposed granting the motion in part and denying it in part.

Subsequently, the parties stipulated to the tentative order and settled all remaining individual claims. Brown and De La Rosa reserved the right to challenge the district court‘s judgment denying class certification of the direct wage claim and dismissing Brown‘s individual direct wage statement claim. Brown and De La Rosa appealed the issues reserved by the settlement.

II

Defendants argue that we lack jurisdiction under Microsoft v. Baker to consider an appeal of the district court‘s interlocutory judgment because Brown and De La Rosa voluntarily settled the remaining claims. In Baker, the district court declined to certify the plaintiffs’ proposed class, and the appellate court declined discretionary interlocutory review under Rule 23(f). 137 S.Ct. at 1710-11. Rather than pursue their individual claims on the merits, the plaintiffs voluntarily dismissed their own claims with the express purpose of creating a final judgment for appeal. Id. at 1711. The plaintiffs then appealed only the district court‘s interlocutory order striking their class allegations. Id. The Supreme Court held that “the voluntary dismissal essayed by respondents does not qualify as a ‘final decision’ within the compass of § 1291.” Id. at 1707. The Court explained that this “tactic would undermine § 1291‘s firm finality principle, designed to guard against piecemeal appeals, and subvert the balanced solution Rule 23(f) put in place for immediate review of class-action orders.” Id.

The parties’ mutual settlement for consideration in this case does not raise the same concerns. Unlike the plaintiffs in Baker, Brown and De La Rosa continued litigating their remaining individual claims after the district court denied class certification. Some of these individual claims resolved in favor of Defendants and some resulted in settlement. No facts suggest that Brown and De La Rosa engaged in sham tactics to achieve an appealable final judgment. The resolution of the present case was not a unilateral dismissal of claims, but a mutual settlement for consideration reached by both parties which expressly preserved certain claims for appeal. This case is unlike Baker, where the plaintiffs openly intended to sidestep Rule 23(f) when they voluntarily dismissed their claims.

III

The settlement reached in this case does not implicate the concerns raised in Baker and constitutes a valid final judgment. Therefore, we have jurisdiction under 28 U.S.C. § 1291 to consider the appeal on the merits.¹

MOTION DENIED.

and without a legitimate medical purpose without mentioning the usual standard of care“).

Notes

All other issues presented by this case are discussed in the memorandum disposition filed concomitantly with the order.

The Honorable Kathleen M. O‘Malley, United States Circuit Judge for the U.S. Court of Appeals for the Federal Circuit, sitting by designation.

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