Smith v. Roebuck

232 F. App'x 780
Court of Appeals for the Tenth Circuit·Decided May 1, 2007·No. No. 06-6151·Published·Cited by 6 cases

Opinion

ORDER AND JUDGMENT*

MONROE G. McKAY, Circuit Judge.

Plaintiff Vicki Lynn Smith appeals from the district court’s order excluding the testimony of her expert witness under Rule 702 of the Federal Rules of Evidence and Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), and for summary judgment in favor of defendants Sears Roebuck and Co. (Sears) and The Chamberlin Group Inc. (Chamberlin).1 She also assigns as error the court’s denial of her motions to compel discovery. We have jurisdiction under 28 U.S.C. § 1291 and affirm.

BACKGROUND

In April 2003, Ms. Smith’s four-year-old son Tommy, was killed when he was trapped under a garage door that was installed with a garage door opener manufactured by Chamberlin and sold by Sears. At the time of the accident, the opener had been in use for twenty-four years. By the time her lawsuit was filed in October 2004, the garage door itself had been badly dam[782] aged and the opener had been dismantled. At some unknown time, numerous component parts of the opener were lost or misplaced, and could not be produced for inspection and testing during discovery.

To prove her claims for products liability and negligence, Ms. Smith identified Gene Litwin as an expert witness to testify that the garage door opener was defectively designed and that this design defect caused the accident. Mr. Litwin also opined that the warnings contained in the Owner’s Manual were inadequate. Following discovery, Sears and Chamberlin moved to strike Mr. Litwin’s testimony, challenging the reliability and relevance of his testimony and his qualifications as an expert witness. They also moved for summary judgment.

EXPERT TESTIMONY

Rule 702 of the Federal Rules of Evidence codifies the Supreme Court’s decision in Daubert and sets forth the standard that expert testimony must meet to be admissible in evidence. As part of its gate keeping function, and in addition to determining whether the proposed expert is qualified to offer an opinion, the trial court must also determine whether “(1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of rehable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.” Fed.R.Evid. 702. Reliability under Daubert is determined by looking at “whether the reasoning or methodology underlying the testimony is scientifically valid,” 509 U.S. at 592-93, 113 S.Ct. 2786 and relevance is determined by “whether that reasoning or methodology properly can be applied to the facts in issue.” Id. at 593, 113 S.Ct. 2786.

In determining the reliability of expert testimony, there are several nonexclusive factors that the court may consider, including (1) whether the expert’s theory or technique can be and has been tested, (2) whether the theory or technique has been subjected to peer review and publication, (3) the known or potential rate of error of the technique or theory, and (4) the general acceptance of the theory or technique. Id. at 592-94, 113 S.Ct. 2786. Daubert itself, however, recognizes these factors are not definitive, and a trial court has broad discretion to consider other factors in determining the reliability of the proffered expert testimony. Id. at 594, 113 S.Ct. 2786; see also Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999) (concluding that “the trial judge must have considerable leeway in deciding in a particular case how to go about determining whether particular expert testimony is reliable”).

The party sponsoring expert testimony

need not prove that the expert is undisputably correct or that the expert’s theory is generally accepted in the scientific community. Instead, the [party] must show that the method employed by the expert in reaching the conclusion is scientifically sound and that the opinion is based on facts which sufficiently satisfy Rule 702’s reliability requirements.

Truck Ins. Exch. v. MagneTek, Inc., 360 F.3d 1206, 1210 (10th Cir.2004) (internal quotations and citations omitted).

On appeal,

we review de novo the question of whether the district court applied the proper standard and actually performed its gatekeeper role in the first instance. We then review the trial court’s actual application of the standard in deciding whether to admit or exclude an expert’s testimony for abuse of discretion.... The trial court’s broad discretion applies both in deciding how to assess an ex[783] pert’s reliability, including what procedures to utilize in making that assessment, as well as in making the ultimate determination of reliability____A court does not abuse its discretion unless its decision is arbitrary, capricious, whimsical or manifestly unreasonable, or unless we are convinced it made a clear error of judgment or exceeded the bounds of permissible choice in the circumstances.

Dodge v. Cotter Corp., 328 F.3d 1212, 1223 (10th Cir.2003) (internal citation and quotations omitted).

Ms. Smith asserts the district court misapplied Daubert and Rule 702 to the undisputed facts. We disagree. Specifically, Mr. Litwin’s opinion was that the garage door opener “was prone to failure because in ordinary use [the reverse mechanism] would rarely be actuated and the mechanism would tend to get inoperably stuck when not actuated frequently.” ApltApp., Vol. II at 736. The court found Mr. Litwin’s opinion failed to meet the standards of reliability under Daubert and Rule 702 because, among other things:

• He did no testing to substantiate his theory.
• His opinion ignored Ms. Smith’s testimony that she had tested the reverse mechanism of the garage door opener at least three to four times a year from 1996 (when she moved into the home) through the date of the accident in April 2003, thus eliminating lack of use as a cause of the failure.
• He could not rule out any of the numerous alternative causes for the accident, including the fact that mechanical devices do not last forever and are subject to failure without warning, the motor in the garage door opener had a weeping capacitor, the opener may have not been properly adjusted, the garage door may not have been properly lubricated, and the old and worn motor may have had insufficient torque to activate the reverse mechanism.

Free access — add to your briefcase to read the full text and ask questions with AI

Smith v. Roebuck, 232 F. App'x 780 (10th Cir. 2007).

232 F. App'x 780 (Smith v. Roebuck) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Related