The 9th Circuit panel may or may not be correct--and a hearing before the full bench would be usseful on the issue of procedure. But don't blame the court, blame it on those who throughout the country were successful in getting state legislatures to revoke the long standing tort doctrine of contibutory negligence. The plainitff would not have been successful except where there is comparative negligence. In some states the plaintiff can be far more than 50% negligent and still recover a percentage of the verdict.