FILED
                                                    United States Court of Appeals
                                                            Tenth Circuit

                                                           July 22, 2010
             UNITED STATES COURT OF APPEALS A. Shumaker
                                        Elisabeth
                                                           Clerk of Court
                               TENTH CIRCUIT



CARLOS CRUZ; ANDRES
HERNANDEZ; GENARO PEREZ
IBARRA; RACHEL HIGGINS, ESQ.,
as Personal Representative of Narciso
Bandala-Flandes, Deceased; PAULA
GAMINO-LAZARO; GUADALUPE
BANDALA-GAMINO; MONICA
BANDALA-GAMINO; MIGUEL
ANGEL BANDALA-GAMINO,

      Plaintiffs-Appellants,


ZIA TRUST, INC., a New Mexico                      No. 08-2242
Corporation, as Personal                (D.C. No. 6:06-CV-00538-BB-DJS)
Representative of the Estate of                   (D. New Mex.)
Mitchell Rosario Ortega, and as
Conservator of Irvin Naveda Rosario
and Leobardo Rosario Quitario,

      Plaintiff-in-Intervention,

v.

BRIDGESTONE/FIRESTONE
NORTH AMERICAN TIRE, LLC,

      Defendant-Appellee.
                        ORDER AND JUDGMENT *

Before O’BRIEN, SEYMOUR, and GORSUCH, Circuit Judges.


      This products liability action arose out of a fatal vehicle accident that

occurred in February 2006. Plaintiffs allege that the left rear tire (“subject tire”)

on their 1988 GMC van suddenly and unexpectedly deflated, causing the van with

its twelve occupants to overturn. The district court precluded their expert, David

Osborne, from testifying that the subject tire was defective in design for failing to

include nylon cap plies, and thereafter granted summary judgment to defendant

Bridgestone/Firestone North American Tire, LLC (“Bridgestone/Firestone” or

“defendant”). For the reasons that follow, we affirm.

      Plaintiffs Carlos Cruz, Andres Hernandez, and Genaro Perez Ibarra suffered

severe and extensive injuries when the van overturned. Passengers Narcisco

Bandala-Flandes and Mitchell Rosario Ortego suffered fatal injuries. Mr. Cruz

and Mr. Hernandez filed suit against Bridgestone/Firestone in New Mexico state

court for personal injuries and wrongful death. 1 Bridgestone/Firestone removed


      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with the terms and conditions of Fed.
R. App. P. 32.1 and 10th Cir. R. 32.1.
      1
       Zia Trust, Inc., as the personal representative of the estate of Mitchell
Rosario Ortega, and as conservator for Irvin Naveda Rosario intervened as

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the suit to federal court on the basis of diversity jurisdiction.

      Plaintiffs proffered Mr. Osborne as an expert witness for the purpose of

opining on the alleged defects in the subject tire. Following a forensic

examination, Mr. Osborne concluded that the tire was defective because of

defendant’s failure to design it with a nylon cap ply. He reasoned:

      [T]he tire failed from a belt-to-belt separation that eventually led to
      the detachment of the top belt and tread from the tire in what is
      commonly called a tread separation. . . . It is my opinion that the
      rubber between the belt edges on the non-serial side failed from
      fatigue because it was not robust enough to withstand the normal
      forces acting upon the tire.

Aplt. App., vol. II at 427.

      [I]t is my opinion that the failure to design the LT (Light Truck) tire
      in question with a nylon cap ply was a design defect that if it had
      been designed into the tire, would have prevented the failure from
      occurring before the tire was worn out. A nylon cap ply is a layer of
      rubberized nylon cords that is wrapped around the tire so that it goes
      over the top of the two steel belts and under the tread. A nylon cap
      ply forms a tight band over the two belts and acts like a tourniquet,
      restricting the movement of the belts, particularly at the belt edges.
      By restricting the movement of the belts, the nylon cap ply reduces
      the stresses at the belt edges and therefore reduces the fatiguing
      effect of the many cyclic loadings during a tire’s lifetime.

      Bridgestone/Firestone moved to exclude Mr. Osborne’s testimony for want




plaintiff. Subsequently, Mr. Cruz and Mr. Hernandez amended their complaint to
join Mr. Ibarra, Rachel Higgins, Esq., Paula Gamino-Lazaro, Guadalupe Bandala-
Gamino, Monica Bandala-Gamino, and Miguel Angel Bandala-Gamino as parties
plaintiff.

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of adequate indicia of reliability, asserting that “Osborne: (1) has conducted no

testing to support his opinions, (2) has no scientific studies to support his

opinions, (3) has not subjected his opinions or methodology to peer-review, and

(4) cannot establish the rate of error for his opinions or methodology given his

lack of testing.” 

At the same time, Bridgestone/Firestone filed a

motion for summary judgment arguing that “[w]ithout a qualified tire expert,

Plaintiffs cannot make the requisite showing to survive a Motion for Summary

Judgment.” 

      The district court granted Bridgestone/Firestone’s motion to exclude Mr.

Osborne’s testimony insofar as it related to his nylon cap ply theory. It then

determined that there was no evidence to support plaintiffs’ remaining claims and

granted summary judgment to defendant.

      “Fed[eral] R[ule] of Evid[ence] 702 imposes upon the trial judge an

important ‘gate-keeping’ function with regard to the admissibility of expert

opinions.” Ralston v. Smith & Nephew Richards, Inc., 

, 969 (10th

Cir. 2001). Although “the gatekeeper inquiry under Rule 702 is ultimately a

flexible determination, . . . a district court, when faced with a party’s objection,

must adequately demonstrate by specific findings on the record that it has

performed its duty as gatekeeper.” Goebel v. Denver & Rio Grande W. R.R. Co.,

, 1088 (10th Cir. 2000). We review the district court’s evidentiary

determinations under the deferential abuse of discretion standard, see Specht v.

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Jensen, 

, 810 (10th Cir. 1988), and “we will not disturb the ruling

unless it is arbitrary, capricious, whimsical or manifestly unreasonable, or we are

convinced that the district court made a clear error of judgment or exceeded the

bounds of permissible choice in the circumstances.” United States v. Nacchio,

, 1241 (10th Cir. 2009) (en banc) (citations and internal quotation

marks omitted).

      To perform their gatekeeper duty, district courts engage in a two-pronged

analysis, determining first whether an expert is qualified to render an opinion by

“knowledge, skill, experience, training, or education” and, second, whether the

expert’s opinions are “reliable” under Daubert v. Merrell Dow Pharm., Inc., 

, 592 (1993). 

(quoting Fed. R. Evid. 702).

“Reliability is determined by assessing whether the reasoning or methodology

underlying the testimony is scientifically valid.” Hollander v. Sandoz Pharms.

Corp., 

, 1204 (10th Cir. 2002) (internal quotation marks omitted).

      The Court in Daubert articulated four non-exclusive factors which may be

applicable to the district court’s assessment:

      (1) whether the opinion at issue is susceptible to testing and has been
      subjected to such testing; (2) whether the opinion has been subjected
      to peer review; (3) whether there is a known or potential rate of error
      associated with the methodology used and whether there are
      standards controlling the technique’s operation; and (4) whether the
      theory has been accepted in the scientific community.

(citing 

). “[T]he test of


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reliability is ‘flexible,’ and Daubert’s list of specific factors neither necessarily

nor exclusively applies to all experts or in every case.” Kumho Tire Co. v.

Carmichael, 

, 141 (1999); see 

(holding Daubert principles

applicable to all Rule 702 expert reliability determinations and affirming district

court’s exclusion of tire expert’s opinion that manufacturing defect caused tire

tread separation). The purpose of the inquiry is “to make certain that an expert,

whether basing testimony upon professional studies or personal experience,

employs in the courtroom the same level of intellectual rigor that characterizes

the practice of an expert in the relevant field.” 

(citation and quotation

marks omitted).

      The district court identified and applied the Daubert framework. First, the

court observed that although Mr. Osborne had served several years as an

international expert on tire failures and had extensively examined the tire, he did

“not perform[] any testing specifically related to his opinions in this case. Nor is

he aware of any testing on nylon caps vis-a-vis tire separation.” Aplt. App., vol.

III at 1134. Second, the court noted that Mr. Osborne had offered no scientific

literature, and thus no peer-reviewed studies, in support of his opinion. Finally,

Mr. Osborne had conceded that no tire standard in the United States suggested,

much less required, the use of nylon cap plies in tires at the time the subject tire

was manufactured. Invoking the court’s conclusion in Vigil v. Michelin N. Am.,

Inc., No. EP-05-CV-001-KC, 

(W.D. Tex. filed Aug. 24, 2007),

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which characterized Mr. Osborne’s “unsubstantiated leaps in logic” regarding the

defectiveness of tires without nylon cap plies as “offen[sive to] the core of the

Daubert holding [with] no rightful place in the courtroom,” Vigil, 

, at *7, the district court precluded Mr. Osborne from testifying on his

nylon cap ply theory. The court also precluded Mr. Osborne’s testimony on “(1)

the necessity for tire replacement after six years; (2) the multiple reasons why a

tire can fail; (3) [the fact that] the impact damage was not the cause of the tread

separation; and (4) the propriety of using this tire at 75 miles per hour” on the

basis that plaintiffs failed to timely advance these theories in their Fed. R. Civ. P.

26 disclosures. Aplt. App., vol. III at 1133 n.1.

      On appeal, plaintiffs contend the district court’s exclusion of their expert’s

nylon cap ply theory constituted an abuse of discretion. Based on a careful review

of the record, we disagree. As the district court explained, Mr. Osborne conducted

no testing pertaining to his nylon cap ply theory, he offered no peer-reviewed

studies supporting his opinion, he offered no empirical data, and he conceded that

no tire standard called for use of nylon cap plies in tires. In other words, plaintiffs

failed to satisfy the enumerated Daubert admissibility criteria. Given the absence

of an evidentiary basis under Daubert to support Mr. Osborne’s nylon cap ply

theory, we conclude that the district court’s expressed concerns were within the

bounds of permissible choice and that its exclusion of Mr. Osborne’s nylon cap ply

theory was not arbitrary or capricious.

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      Plaintiffs argue the district court should have nevertheless admitted Mr.

Osborne’s testimony because it qualifies as differential analysis, which we have

previously upheld as sufficient to validate an expert’s opinion. Bitler v. A.O.

Smith Corp., 

(10th Cir. 2004). Differential analysis is

      more aptly characterized as a process of reasoning to the best
      inference. . . . [The] experts must reason, as it were, backwards to the
      cause of a single explosion, and to do so requires a process of
      eliminating possible causes as improbabilities until the most likely
      one is identified. Experts must provide objective reasons for
      eliminating alternative causes when employing a ‘differential
      analysis.’ Furthermore, the inference to the best explanation must
      first be in the range of possible causes; there must be some
      independent evidence that the cause identified is the type that could
      have been the cause.

(internal citation omitted). Our acknowledgment in Bitler that such

testimony may be admissible, however, does not constitute a mandate. Here, given

the failure of Mr. Osborne’s nylon cap ply theory to satisfy any of the Daubert

prongs, the district court’s determination that the theory lacked a sufficiently

reliable, objective independent scientific basis, as required by Bitler, was

reasonably within its discretionary authority.

      Finally, plaintiffs claim the district court erred by determining that Mr.

Osborne’s testimony was untimely regarding the “(1) multiple reasons why a tire

can fail, and (2) that impact damage was not the cause of the tread separation.”

See Reply Br. at 1. Defendant acknowledges that “the district court may have

inaccurately described the scope of the opinions it intended to exclude.” Aple. Br.


                                          -8-
at 21. This error was harmless, however, because neither Mr. Osborne’s opinion

on the multiple reasons a tire can fail nor the elimination of impact damage as a

cause of the failure raises a triable issue of fact as to whether the subject tire was

defective. See Fed. R. Civ. P. 61 (“Unless justice requires otherwise, no error in

admitting or excluding evidence – or any other error by the court or a party – is

ground for granting a new trial, for . . . modifying, or otherwise disturbing a

judgment or order.”).

      We AFFIRM.


                                        ENTERED FOR THE COURT


                                        Stephanie K. Seymour
                                        Circuit Judge




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