F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           APR 6 2004
                             FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                                 Clerk

    VAN COTT, BAGLEY,
    CORNWALL & MCCARTHY,

                Appellant,

    v.                                                   No. 02-4245
                                                 (D.C. No. 2:01-CV-365-PGC)
    DAVID R. WILLIAMS,                                     (D. Utah)

                Appellee.


                             ORDER AND JUDGMENT           *




Before SEYMOUR , Circuit Judge, BRORBY , Senior Circuit Judge, and
HENRY , Circuit Judge.



         After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal.   See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.




*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
      Appellant Van Cott, Bagley, Cornwall & McCarthy, a Utah law firm,

appeals from the district court’s order affirming a decision of the United States

Bankruptcy Court. Van Cott, which had represented debtor David R. Williams in

state court litigation, filed a proof of claim for $387,836.52 in unpaid attorney’s

fees. The estate objected to the amount of the claim and supported its objection

with an expert report, prepared by Benson L. Hathaway, a Utah attorney.

      The report was based on Mr. Hathaway’s       review of Van Cott’s billing

statements, followed by an examination of the pleadings, documents, and

transactions related to amounts he found questionable. At a hearing during which

Mr. Hathaway testified, the bankruptcy court     initially expressed doubt about the

factual foundation and methodology underlying the expert report. After counsel

for the estate laid additional foundation, the court admitted the report.

Ultimately, the court accepted the report’s recommendations (with an exception

related to interoffice conferences) and reduced the amount of Van Cott’s claim      to

$185,726.29. Van Cott unsuccessfully appealed the reduction in amount to the

district court, then brought this appeal. We exercise our jurisdiction and affirm. 1




1
       This court issued a show cause order requiring appellant to demonstrate
that we have appellate jurisdiction to review the district court’s order. Having
reviewed the filings of the parties, we conclude that the district court order is a
final order for purposes of appeal and that we have jurisdiction under 28 U.S.C.
§ 158(d).

                                           -2-
      Van Cott asserts that the bankruptcy court improperly admitted and credited

the expert report and testimony. The question of whether the bankruptcy court

applied the proper legal test in evaluating the expert opinion is reviewed de novo

and the court’s subsequent evidentiary ruling is reviewed under the abuse of

discretion standard. Miller v. Pfizer, Inc., 

, 1335 (10th Cir. 2004). 2

Van Cott’s issues on appeal implicate both types of review.

      The law firm first contends that the bankruptcy court did not adequately

perform the Fed. R. Evid. 702 gatekeeper function established by Daubert v.

Merrell Dow Pharmaceuticals, Inc., 

(1993). When expert testimony

is proffered, the trial judge must, at the outset, “assess the reasoning and

methodology underlying the expert’s opinion and determine whether it is

scientifically valid” and relevant to the case at hand. Goebel v. Denver &

Rio Grande W. R.R., 

, 1087 (10th Cir. 2000).

      Van Cott argues that Mr. Hathaway did not conduct a sufficient

examination of the documents generated in the state court case to gain an

appreciation of the case’s complexity and contentiousness. Thus, the law firm

argues, Mr. Hathaway’s report and testimony lacked a factual foundation. In our



2
        We analyze this appeal under the same standards of review that governed
the district court’s review of the bankruptcy court’s ruling. See Connolly v.
Harris Trust Co. of Cal. (In re Miniscribe Corp.), 

, 1240 (10th Cir.
2002).

                                         -3-
de novo review of this legal issue, however, we determine that the bankruptcy

court carefully reviewed the Hathaway report to assure that it was relevant,

reliable, and based on valid reasoning and methodology. The bankruptcy court

pointed out foundational flaws, then heard additional testimony on

Mr. Hathaway’s analytical process. The bankruptcy court did not err in carrying

out its gatekeeper role.

      Van Cott also attacks the bankruptcy court’s admission of Mr. Hathaway’s

opinion evidence. Since we have concluded that the court properly acted as a

gatekeeper, the appropriate inquiry becomes whether the court correctly applied

the Daubert standard in determining admissibility. “[T]o warrant reversal,” the

record must show that the evidentiary decision “must be characterized as

manifestly erroneous.” Goebel v. Denver & Rio Grande W. R.R., 

,

1000 (10th Cir. 2003) (citing Gen. Elec. Co. v. Joiner, 

, 142-43

(1997)). Based on the record before us, we see no abuse of discretion in the

court’s decision to admit Mr. Hathaway’s opinion evidence.

      The judgment of the district court is AFFIRMED.


                                                    Entered for the Court



                                                    Robert H. Henry
                                                    Circuit Judge


                                        -4-