UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 06-2307



MOLLIE L. KENNEDY, Administratrix of the Estate of Gregory R.
Kennedy, deceased,

                Plaintiff - Appellant,

           v.


JOY TECHNOLOGIES, INCORPORATED; MATRIC LIMITED,

                Defendants - Appellees.



Appeal from the United States District Court for the Western
District of Virginia, at Big Stone Gap. James P. Jones, Chief
District Judge. (2:05-cv-00030-JPJ)


Argued:   December 5, 2007                 Decided:   March 12, 2008


Before WILKINSON and KING, Circuit Judges, and Henry F. FLOYD,
United States District Judge for the District of South Carolina,
sitting by designation.


Affirmed in part, reversed in part, vacated in part, and remanded
by unpublished per curiam opinion.


ARGUED: James J. O’Keeffe, GENTRY, LOCKE, RAKES & MOORE, Roanoke,
Virginia, for Appellant.   Frank Kenneth Friedman, WOODS ROGERS,
P.L.C., Roanoke, Virginia; Patrick D. Blake, WILLCOX & SAVAGE,
Norfolk, Virginia, for Appellees. ON BRIEF: Monica Taylor Monday,
Charles H. Smith, III, GENTRY, LOCKE, RAKES & MOORE, Roanoke,
Virginia, for Appellant. Mark D. Loftis, WOODS ROGERS, P.L.C.,
Roanoke, Virginia, for Appellee Joy Technologies, Incorporated.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

     This appeal arises from a lawsuit relating to a 2003 mining

accident in southwestern Virginia, in which coal miner Gregory

Kennedy   was   fatally   crushed   by   a    continuous   mining   machine.1

Mollie Kennedy, the administratrix of her husband’s estate, appeals

from the district court’s award of summary judgment to defendants

Joy Technologies, Incorporated, and Matric Limited. See Kennedy v.

Joy Tech., Inc., No. 2:05-cv-00030 (W.D. Va. Oct. 5, 2006) (the

“Opinion”).2    Mrs. Kennedy contends on appeal that the court erred

in excluding from evidence a portion of the accident investigation

report made by the Mine Safety and Health Administration concerning

her husband’s death (the “MSHA Report”), and in excluding the

opinions of her causation expert.3           As explained below, we affirm

the court’s ruling on the expert, reverse its ruling on the MSHA

Report, vacate the summary judgment award, and remand.




     1
      A continuous miner is a piece of mining equipment that cuts
coal directly from a coal seam, replacing many conventional mining
tasks such as drilling and blasting. Consol. Coal v. Marshall, 

, 1213 n.1 (3d Cir. 1981).
     2
      The Opinion can be found at J.A. 1236-43. (Citations herein
to “J.A. ___” refer to the contents of the Joint Appendix filed by
the parties in this appeal.)
     3
      Mrs. Kennedy also contends on appeal that the award of
summary judgment to the defendants resulted from an impermissible
weighing of the causation evidence, i.e., that the court failed to
view the evidence in the light most favorable to her, as the
nonmoving party. For the reasons discussed infra note 14, we need
not reach this contention.

                                     2
                                  I.

                                  A.

     At approximately 10 a.m. on October 22, 2003, Gregory Kennedy,

a forty-one-year-old coal miner, was operating a continuous miner

(the “mining machine”) with a remote control device (the “remote

controller”) in an underground mining operation in Paramount Coal

Company’s No. 7 mine, in Dickenson County, Virginia.4      Although Joy

sold the remote controller under its name as a component of the

mining machine, Matric had manufactured the remote controller under

contract with Joy.    The remote controller contained two levers,

each of which controlled one of the mining machine’s two tracks,

generally referred to as “trams,” on its right and left sides.        By

utilizing   the   remote   controller’s   two   levers,   the   operator

controlled the trams and thus the direction of the mining machine.

In his work, Mr. Kennedy walked alongside the mining machine during

its operations and wore the remote controller on a harness strapped

to his body.

     On the morning of October 22, 2003, Mr. Kennedy was engaged in

a process called “retreat” mining (also known as “pillaring”), and

was backing the mining machine out of a cut it had made in a pillar




     4
      The facts underlying this appeal are presented in the light
most favorable to Mrs. Kennedy, as the nonmoving party with respect
to the summary judgment motion. See Seabulk Offshore, Ltd. v. Am.
Home Assur. Co., 

, 418 (4th Cir. 2004).

                                   3
of coal.5    Mr. Kennedy backed the mining machine through an

intersection of two mine entries (underground tunnels within a coal

mine), preparing to make the next cut into the pillar.      At the

time, two other coal miners, Anthony Blackburn and Willie Mullins,

were nearby hanging a ventilation curtain, with their backs to Mr.

Kennedy.    After noticing a change in the sound of the mining

machine, Blackburn turned and observed that Mr. Kennedy was no

longer moving.   He immediately illuminated Mr. Kennedy and the

mining machine with a light, and saw that Kennedy was slumped over

with blood flowing from his nose and mouth.     Blackburn promptly

approached Mr. Kennedy and discovered that he was stuck between the

mining machine and the corner of the coal rib (the wall of the

mine) around which the machine had been maneuvering. At that time,

Mr. Kennedy’s back was against the coal rib and the mining machine

was pressed against his abdomen.     Although the mining machine’s

left tram was spinning, Blackburn observed that the levers on the

remote controller were not depressed.

     Blackburn promptly hit the emergency stop button on the remote

controller, de-energizing the mining machine and stopping the left

tram from spinning.   While other miners hurriedly sought emergency

assistance, Blackburn tried to move the mining machine away from


     5
      “Pillar” or “retreat” mining is the process by which a coal
mining operation works “back from a remote portion of the mine
toward the entrance and permit[s] the roof to fall in as the
pillars of coal supporting it [are] removed.” Alsted Coal Co. v.
Yoke, 

, 767 (4th Cir. 1952).

                                 4
Mr. Kennedy’s body by using the remote controller.        Although

Blackburn cut the remote controller from Mr. Kennedy’s body, he was

unable to get it to function.    Finally, after removing the power

cord from another unit and attaching it to the remote controller,

Blackburn was able to move the machine away from Mr. Kennedy’s

body.   Mr. Kennedy was then airlifted to the emergency room of St.

Mary’s Hospital in Norton, Virginia, where he was declared dead at

10:55 a.m.

     The state agency responsible for mine safety in Virginia, the

Commonwealth’s Department of Mines, Minerals, and Energy (“DMME”),

was notified of Mr. Kennedy’s fatal accident within twenty minutes.

A few minutes later, MSHA also received such notification, and

representatives of both agencies arrived at the coal mine about

mid-day to begin a joint investigation.     The MSHA investigatory

team included an electrical engineer, a mining engineer, a mine

inspection supervisor, and a mine safety and health inspector. The

MSHA team, working with DMME, collected relevant information,

questioned company personnel, and examined and photographed the

accident scene, beginning their work within two or three hours of

the accident.   The investigation proceeded thereafter over several

months with an expanded investigative team, including, inter alia,

the district manager and assistant district manager of MSHA’s

regional office. From this effort, the MSHA team developed precise

drawings of the accident scene.      The team conducted extensive


                                 5
interviews with those having knowledge of the accident and tested

the mining machine to assess whether it had been functioning

properly at the time of the fatality.          It also tested the remote

controller, along with its various power sources and components, in

a laboratory setting.

     MSHA’s investigative efforts culminated in its detailed MSHA

Report,   which   fully   described   the    accident   investigation   and

included appendices on MSHA’s examination and testing of the mining

machine and remote controller.            After describing Mr. Kennedy’s

activities prior to the accident, the MSHA Report detailed the

tragic event, including the following:

     Kennedy was located close to the inby, left corner of the
     outby block when the machine pivoted to the right. He
     was crushed between the machine’s motor compartment of
     the ripper head and the coal rib. He was standing with
     his back against the coal rib and the machine against his
     abdomen. The bottom of the remote controller was against
     the right portion of Kennedy’s abdomen. The controls of
     the remote controller were not depressed by any means.
     Neither his hands nor any other objects were on the
     controls. The left side track on the machine was still
     spinning in the forward direction.

J.A. 627.     The MSHA Report observed that there were no eye

witnesses to the accident, “[n]o one stated the continuous mining

machine would make unexpected movements prior to the accident,” and

“[n]o one stated Kennedy had been previously observed within the

turning radius of the machine.”           

the

“Overview” section of the Report concluded that:

     The most likely explanation for this continued operation
     is a build up of debris in the left side track operating

                                      6
      lever’s socket, located on the remote controller, which
      prevented the lever from returning to its neutral
      position.

MSHA Report listed “causal factors” in its “Root

Cause Analysis” section, concluding that the “primary cause was the

victim’s position within the turning radius of the continuous

mining machine while it was being trammed.”               

Report also specified another “causal factor,” concluding that

“[t]he remote control transmitter could have caused the left tram

drive to continue after the machine operator released the tram

lever due to debris lodged between the tram lever and the plate.”

its “Conclusion” section, the Report determined, in

language similar to that used in its Overview, that:

      The left side track of the machine apparently continued
      to move due to a fouled tram lever on the remote
      controller.   Debris accumulated in the lever’s socket
      prevented the lever from returning to its neutral
      position.

C, the MSHA Report indicated that “the socket

for   the   left   tram   lever   was    nearly   full   of   dust   and   dirt,

restricting its free travel.”           

      The Report also related that the MSHA investigation team had
learned of a subsequent incident that occurred six months after Mr.
Kennedy’s fatal accident. In that incident, the left side tram of
the same mining machine continued to operate after both tram levers
on a replacement remote controller had been released, causing the
machine to slew to the right.

                                         7
                                      B.

     On July 7, 2005, Mrs. Kennedy, for her husband’s estate, filed

suit against the defendants in the Western District of Virginia,

asserting that his death was caused by a defective mining machine

and its associated defective remote controller. Specifically, Mrs.

Kennedy alleged two negligence claims plus a products liability

claim, contending that the defendants had negligently designed the

mining machine and remote controller and negligently failed to warn

of their dangers.      In her products liability claim, Mrs. Kennedy

contended that the defendants had breached implied warranties of

merchantability and fitness for a particular purpose because the

mining machine and remote controller were defectively designed,

manufactured, and marketed.         These allegations are spelled out in

the Amended Complaint filed by Mrs. Kennedy on September 29, 2005,

which sought both compensatory and punitive damages. On August 11,

2006, Mrs. Kennedy abandoned her negligence claims.

     On    September   5,   2006,    the   defendants   moved   for   summary

judgment on the products liability claim, asserting that Mrs.

Kennedy was unable to prove that their products were defective.

Defendant Matric also contended that Mrs. Kennedy could not prove

that any defect in its remote controller caused the death of Mr.

Kennedy.    In support of their contentions, the defendants argued

alternate causes of the fatal accident, through expert testimony

and other evidence — first, that Mr. Kennedy had committed user


                                       8
error, based in part on his alleged position within the “red zone,”

or turning radius of the mining machine, at the time of the

accident; and, second, that Paramount Coal had made unauthorized

alterations to the remote controller that allowed excessive dust

and debris to accumulate in its tram levers.

     When they sought summary judgment, the defendants also moved

to exclude the evidence of Mrs. Kennedy’s expert witnesses, Dr.

Thomas Butler and Dr. Farhad Booeshaghi.                        In response to the

exclusion motion, Mrs. Kennedy withdrew Dr. Booeshaghi as an

expert,    but    opposed        the   motion    to    exclude       Dr.    Butler.    In

opposition      to   the    defendants’       summary        judgment      and   exclusion

motions, Mrs. Kennedy filed, inter alia, the expert report and

testimony of Dr. Butler, the MSHA Report, and various documents

illustrating      the    problems      that     defendant      Joy    had    experienced

earlier with debris accumulation in its remote controllers and the

resulting unplanned movements of its mining machines.7

     The district court conducted a motions hearing on October 4,

2006,    and    issued     its    Opinion     the     next    day,   granting     summary

judgment to the defendants and excluding the opinions of Dr.

Butler.        By its Opinion, the court concluded that “[a]fter a

     7
      At the request of MSHA, and after receiving complaints that
remote controllers were sticking because of debris, Joy made a
series of design revisions to its remote controllers.          In
connection with a recall of its remote controllers — necessary to
install the mandated revisions — Joy warned its customers to
“[p]lease remember that unplanned machine movement may also occur
due to sticking or damaged switches.” J.A. 974.

                                            9
careful review of the summary judgment record, . . . the plaintiff

is unable to prove causation in this case, an essential element of

her claim of breach of warranty.”     Opinion 5.    The court went on to

relate that,

     [w]hile it is certainly possible that this tragic
     accident was caused by the excessive accumulation of coal
     fines and debris in the control sockets, the evidence is
     equally strong that the unplanned movement of the left-
     hand tram resulted from other causes — for example, an
     electronic malfunction (as suggested by one of the
     plaintiff’s former experts) or an inadvertent error on
     the operator’s part (as suggested by a defense expert).

in a products liability action, proof of

causation must ordinarily be supported by expert testimony, the

court considered the issue of whether the opinions of Dr. Butler

were admissible.   

the court recognized that Dr.

Butler had “opine[d] in his report that the accident was caused by

accumulated debris in a tram control lever socket,” but noted that

Dr. Butler “did no testing,” failed to “perform[] any calculations

regarding the accident and admitted that there could be alternative

explanations,” and that his testimony relied primarily on the MSHA

Report.   Accordingly, the court granted the defendants’ “motion to

exclude Butler’s testimony on this point.”         

      It is unclear whether the court excluded all of Dr. Butler’s
opinions, or only his conclusion that the accident was caused by
accumulated debris in the remote controller’s lever socket. For
the purposes of our analysis, we assume that all of Dr. Butler’s
proposed opinions were excluded.

                                 10
     The district court — acting sua sponte9 — then determined

that “the MSHA report’s opinion that ‘the most likely explanation’

for the accident is debris in the lever socket of the 3-X remote

[controller] is likewise entirely speculative and thus inadmissible

under     [Federal   Rule   of   Evidence]   803(8)(C).”    

the court concluded that “the plaintiff is unable to

prove an essential element of her case — causation — and thus her

suit must fail.”      

the court pointed out that

defendant Joy “did not directly assert insufficient causation

evidence as a ground” for summary judgment, but that defendant

Matric had argued this proposition.          The court thus observed that

its ruling would not come as a surprise to Mrs. Kennedy.          

court raised the issue of admissibility of the
MSHA Report at the motions hearing, asking Mrs. Kennedy’s counsel,
“does the plaintiff contend that the MSHA report, including its
finding that you read to me, is admissible?” J.A. 1232. After
Mrs. Kennedy’s counsel responded in the affirmative, the court
asked the defendants for their position. Not having previously
raised an issue concerning the admissibility of the Report, the
defendants simply responded that, if the court intended to admit
the conclusions of the MSHA Report, they must meet evidentiary
standards of reliability. From this record, it is clear that the
defendants had not contemplated the possibility that the MSHA
Report’s conclusions might be deemed inadmissible.
     10
      The Opinion seems to indicate that only the “MSHA report’s
opinion” — as opposed to the entire Report — was excluded.
Opinion 7. Because the parties share this understanding, we assume
that the district court considered the MSHA Report, save the
Report’s conclusion in its “Overview” section, that the “most
likely explanation for this continued operation is a build up of
debris in the left side track operating lever’s socket.” J.A. 623.

                                     11
     Two weeks later, on October 20, 2006, Mrs. Kennedy sought

relief under Federal Rule of Civil Procedure 59(e), requesting the

district court to reconsider its summary judgment award to the

defendants on the products liability claim.             The court denied

reconsideration on November 13, 2006, and Mrs. Kennedy filed her

notice of appeal on December 12, 2006.          We possess jurisdiction

pursuant to 28 U.S.C. § 1291.



                                     II.

     We   review   de   novo   a   district   court’s   award   of   summary

judgment, viewing the facts and all inferences drawn properly

therefrom in the light most favorable to the nonmoving party.

Seabulk Offshore, Ltd. v. Am. Home Assur. Co., 

, 418

(4th Cir. 2004).    An award of summary judgment is appropriate only

“if the pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any, show that

there is no genuine issue as to any material fact and that the

moving party is entitled to a judgment as a matter of law.”            Fed.

R. Civ. P. 56(c).       A genuine issue of material fact is one “that

might affect the outcome of the suit under the governing law.”

Anderson v. Liberty Lobby, Inc., 

, 248 (1986).               In

opposing a summary judgment motion, the nonmoving party is entitled

to have the “credibility of his evidence as forecast assumed, his

version of all that is in dispute accepted, [and] all internal


                                     12
conflicts in it resolved favorably to him.” Charbonnages de France

v. Smith, 

, 414 (4th Cir. 1979).                          In assessing a

summary judgment motion, a court is entitled to consider only the

evidence that would be admissible at trial.                 See Maryland Highways

Contractors Ass’n, Inc. v. State of Maryland, 

, 1251

(4th    Cir.    1991)    (noting     that       “hearsay     evidence,     which     is

inadmissible at trial, cannot be considered on a motion for summary

judgment”).

       A district court possesses broad latitude in ruling on the

admissibility of evidence, including expert opinions, and we are

unable to overturn evidentiary rulings with respect to relevance

and reliability absent a finding that the presiding court abused

its discretion.       See GE v. Joiner, 

, 141-42 (1997).                  A

district court has abused its discretion if its evidentiary ruling

was guided by erroneous legal principles, or rested upon a clearly

erroneous factual finding.          See Westberry v. Gislaved Gummi, A.B.,

, 261 (4th Cir. 1999).



                                         III.

                                          A.

       In considering this appeal, we first assess Mrs. Kennedy’s

contention     that     the   district    court     abused      its    discretion    in

excluding      the   MSHA     Report’s   conclusion        on   the    cause   of   her

husband’s fatal accident, as being “entirely speculative and thus


                                          13
inadmissible under [Federal Rule of Evidence] 803(8)(C).”   Opinion

7.   As noted, a team of MSHA officials and investigators arrived on

the accident scene shortly after it occurred on October 22, 2003.

The MSHA team, comprised of engineers, safety inspectors, and other

experts, worked jointly with the DMME to secure the relevant

information, question witnesses, and examine and photograph the

accident scene, beginning their effort within a few hours of the

accident. During the investigation, MSHA tested the mining machine

and remote controller, seeking to ascertain whether they had been

functioning properly at the time of the fatality.

      When the MSHA Report was finalized, its “Overview” section

concluded that:

      The most likely explanation for this continued operation
      is a build up of debris in the left side track operating
      lever’s socket, located on the remote controller, which
      prevented the lever from returning to its neutral
      position.

J.A. 623.    In its summary judgment ruling, however, the Opinion

determined that “the MSHA report’s opinion that ‘the most likely

explanation’ for the accident is debris in the lever socket of the

3-X remote [controller] is likewise entirely speculative and thus

inadmissible under Rule 803(8)(C).”      Opinion 7.    Mrs. Kennedy

challenges this adverse admissibility determination, contending

that consideration of this aspect of the MSHA Report is proper with

respect to the summary judgment issue, and that such consideration

will compel the denial of summary judgment to the defendants.


                                 14
      Mrs. Kennedy’s appellate contention on the admissibility of

the MSHA Report’s conclusion implicates the provisions of Federal

Rule of Evidence 803(8)(C).       That hearsay exception specifically

addresses the use in evidence of “factual findings resulting from

an investigation made pursuant to authority granted by law.”         Fed.

R. Evid. 803(8)(C).11    It specifies that:

      The following are not excluded by the hearsay rule, even
      though the declarant is available as a witness . . . (8)
      . . . Records, reports, statements, or data compilations,
      in any form, of public offices or agencies, setting forth
      . . . (C) [when used] in civil actions and proceedings .
      . . factual findings resulting from an investigation made
      pursuant to authority granted by law, unless the sources
      of information or other circumstances indicate lack of
      trustworthiness.

the evidentiary admissibility of public

records and reports is deemed to be presumed, based on the policy

determination that such admissibility is warranted “because of the

reliability   of   the   public   agencies    usually   conducting   the

investigation, and their lack of motive for conducting the studies

other than to inform the public fairly and adequately.”        Ellis v.

Int’l Playtex, Inc., 

, 300 (4th Cir. 1984) (internal



      11
      MSHA’s investigation and Report on Mr. Kennedy’s fatal
accident were made pursuant to authority granted by law. See 30
U.S.C. § 813(a) (requiring authorized representatives of Secretary
of Labor (MSHA) to make frequent inspections and investigations of
mines to determine, inter alia, causes of accidents); 30 C.F.R. §
50.1 (describing MSHA’s authority to “investigate, and to obtain
and utilize information pertaining to, accidents, injuries, and
illnesses occurring or originating in mines”).

                                   15
quotation marks omitted).             As the Supreme Court has recognized,

“portions of investigatory reports otherwise admissible under Rule

803(8)(C)       are    not   inadmissible       merely    because   they      state    a

conclusion or opinion.”           Beech Aircraft Corp. v. Rainey, 

, 170 (1988). When the trustworthiness of such an investigative

report has been challenged, a court should assess and weigh factors

such as:       (1) the timeliness of the investigation; (2) the special

skill or experience of the investigators; and (3) any possible

motivation problems.            

.           We have also

identified other factors that may, in the proper circumstances, be

appropriate       to     such    an    evidentiary        assessment,        including

“unreliability, inadequate investigation, inadequate foundation for

conclusions, [and] invasion of the jury’s province.” Distaff, Inc.

v. Springfield Contracting Corp., 

, 111 (4th Cir.

1993).

     In light of the foregoing, the district court necessarily

abused its discretion in excluding the MSHA Report’s conclusion

from its summary judgment assessment.                    First and foremost, the

court failed to recognize and apply a presumption of admissibility

to the MSHA Report.          As we recognized in Zeus Enterprises, Inc. v.

Alphin Aircraft, Inc.,“[t]he admissibility of a public record

specified in the rule is assumed as a matter of course, unless

there    are    sufficient      negative    factors      to   indicate   a    lack    of

trustworthiness.”            

, 241 (4th Cir. 1999) (internal


                                           16
citations omitted).            Furthermore, the party opposing the admission

of    such   a        report    bears    the      burden     of    establishing         its

unreliability.         

.            Thus, Rule 803(8)(C) “is

not a rule of exclusion, but rather is a rule of admissibility,” so

long as the proffered report satisfies the requirements of the

rule.    

.

      In this situation, the district court excluded the MSHA

Report’s conclusion from its summary judgment assessment without

identifying or explaining any “negative factors [that] indicate a

lack of trustworthiness,” sufficient to overcome the presumption of

admissibility.         

the court observed that the

Report’s conclusion was speculative, it failed to identify any

deficiencies in the MSHA investigation or in MSHA’s testing on the

mining    machine       and    remote   controller.         As    the   Supreme    Court

recognized       in    Beech    Aircraft,      if   an    investigatory        report    is

otherwise admissible under Rule 803(8)(C), portions of that report

are   not    rendered         inadmissible       simply    because      they    state    a

conclusion or 

.         Accordingly, the rule of

presumptive admissibility created by Rule 803(8)(C) was applicable

to both the data and the conclusions spelled out in the MSHA

Report.

      Moreover, the district court failed to assess the reliability

of the MSHA report’s conclusion by use of the various factors

recognized by our precedent. And, these factors plainly weighed in


                                            17
favor of the admissibility of the Report, i.e., — MSHA had

investigated the fatal accident over several months, beginning

immediately after it occurred; the MSHA investigators possessed

special    skills    and    experience;        and    the   defendants     have    not

suggested    any    “motivational    problems”         relating      to   either   the

investigation       or    the   Report.         

(determining       that     court    should          assess       admissibility     of

investigatory report by examining timeliness of investigation,

special skill or experience of officials, and possible motivation

problems).

      Mrs. Kennedy also emphasizes on appeal that the court should

not have ruled sua sponte on the admissibility of the MSHA Report’s

conclusion.      She argues that, despite extensive briefing on the

summary judgment issues, the defendants had never challenged the

admissibility of the Report.         As a result, Mrs. Kennedy relied on

the   Report’s      unchallenged    and        unassailed     contents     as    being

admissible in their entirety, and she contends that the Report was

central to her opposition to the defendants’ summary judgment

request.12    Although a trial court possesses broad discretion in

      12
      On appeal, the defendants now seek to raise issues on the
trustworthiness of the MSHA Report.    Specifically, they contend
that the Report was “rife with contradictions.” Br. of Appellees
46. Their contention in this regard is premised on the fact that
portions of the Report conclude that a stuck switch could have
caused the accident, whereas other portions are more certain of
this result.    The defendants now argue that the Report is
unreliable because it does not indicate whether the investigators
were qualified or whether they ruled out operator error as a

                                          18
addressing evidentiary issues in any pending case, the defendants

bore the burden of proof on this issue, and they raised no

“negative factors to indicate a lack of trustworthiness” of the

Report.   

; see also 

(concluding that “burden is on the party opposing admission to

demonstrate that the report is not reliable” and determining that

this is so because “it is far more equitable to place that burden

on the party seeking to demonstrate why a time tested and carefully

considered presumption is not appropriate”).

     In these circumstances, the district court erred, as a matter

of law, in failing to accord a presumption of admissibility to the

conclusions of the MSHA Report.   It also erred in failing to apply

the various factors recognized by our precedent for assessing the

reliability of such a report, and in presumably placing the burden

on Mrs. Kennedy to establish that the Report’s conclusions were

admissible — rather than on the moving defendants to show they

were inadmissible.   Accordingly, the district court abused its

discretion in excluding the MSHA Report’s conclusion from its




possible cause, and because the Report conflicts with the DMME’s
conclusion. The defendants, of course, should have presented these
contentions in the district court, rather than in this appeal.

                                  19
summary judgment consideration.13    We thus reverse the court’s

ruling as to the MSHA Report’s conclusion.14

                                B.

     Finally, Mrs. Kennedy asserts that the district court erred in

excluding her proffered expert, Dr. Thomas Butler.     According to

Mrs. Kennedy, the court abused its discretion when it excluded Dr.

Butler’s opinions, premised on its determination that Butler had

failed to perform any independent testing, and relied solely on the

MSHA Report.   The defendants, in contrast, contend that Butler’s

qualifications were highly questionable and that he based his

opinion on a single line in the MSHA report’s “Overview.”     After

acknowledging that Dr. Butler had opined that the accident was

caused by accumulated debris in a tram control lever socket, the



     13
      We note that evidence otherwise admissible under Rule
803(8)(C)   remains   subject  to   other   pertinent  evidentiary
limitations, such as those in Rules 402 and 403. See Fed. R. Evid.
402 (providing for exclusion of evidence which is not relevant);
Fed. R. Evid. 403 (providing for exclusion of relevant evidence if
probative value is outweighed by danger of unfair prejudice,
confusion, or delay).
     14
       In light of our disposition of the MSHA Report issue, we need
not address Mrs. Kennedy’s contention that the district court
erroneously awarded summary judgment to the defendants after
weighing the evidence on causation and determining that it was
“equally strong” on both sides.       Opinion 5.    On remand, the
evidence of causation should be revisited and include the MSHA
Report’s conclusion.     We note, however, our concern with the
apparent consideration of material initially presented by Mrs.
Kennedy’s withdrawn expert witness, and observe that she is
entitled to have her evidence viewed in the proper light. See,
e.g., Charbonnages de France v. Smith, 

, 414 (4th Cir.
1979).

                                20
court determined that “Dr. Butler’s deposition, part of the summary

judgment     record,    clearly   shows   that   this    opinion   is     mere

supposition on his part, based primarily on his reading of the

report of the investigation of the accident by [MSHA].” Opinion 6.

Because “Dr. Butler did no testing nor performed any calculations

regarding the accident and admitted that there could be alternative

explanations for the accident that were beyond his expertise,” the

court excluded Dr. Butler’s testimony “on this point.”             

district court’s exclusion of expert testimony for

abuse of discretion, and we do “not overturn Daubert evidentiary

rulings with respect to relevance and reliability absent an abuse

of discretion.”        Bryte v. Am. Household, Inc., 

, 475

(4th Cir. 2005) (citing Daubert v. Merrell Dow Pharms., Inc., 

(1993)).         A district court is afforded “considerable

leeway in deciding in a particular case how to go about determining

whether particular expert testimony is reliable.”            Kumho Tire Co.

v. Carmichael, 

, 152 (1999).          The rules of evidence

provide that “[i]f scientific, technical, or other specialized

knowledge will assist the trier of fact to understand the evidence

or to determine a fact in issue, a witness qualified as an expert

by   knowledge,   skill,    experience,   training,     or   education,   may

testify thereto in the form of an opinion or otherwise.”            Fed. R.

Evid. 702.    And, as the Supreme Court has explained, “[t]he trial

judge must ensure that any and all scientific testimony or evidence


                                     21
admitted is not only relevant, but reliable.” 

.

       Dr. Butler’s report indicates that he was “asked to review the

available documents and other materials and to determine, if

possible, the cause of the accident.”       J.A. 795.    The documents and

materials that Dr. Butler reviewed in the preparation of his report

included: the complaint, answer, and certain other pleadings;

photographs and videotapes of the scene of the accident; the DMME

report, the MSHA Report and data; audio cassettes of interviews

with those who witnessed relevant events on October 22, 2003;

documents produced by Joy; and deposition testimony.           Although Dr.

Butler’s report provides a helpful summary of the deposition

testimony, the MSHA Report, and the documents produced by Joy, it

does not do so with any specific scientific gloss or expertise.

Furthermore, most of the conclusions of his report were apparently

adopted from the MSHA Report.

       The Supreme Court’s decisions in Daubert and Kumho Tire, read

together, mandate the trial courts to serve as gatekeepers on

expert   evidence,   and   to   “ensure   that   any   and   all   scientific

testimony or evidence admitted is not only relevant, but reliable.”

; see also Kumho 

.            In

this case, Dr. Butler’s report does not demonstrate any particular

scientific expertise that can be assessed for reliability or that

would ultimately assist the finder of fact.             The Report merely


                                    22
summarizes   the   evidence   of     record,   without   providing   any

specialized analysis to support its conclusions.

     In according the district court the deference to which its

challenged ruling is entitled, we are therefore unable to disturb

its exclusion of Dr. Butler’s opinions. We thus affirm that aspect

of this appeal, but authorize the court to revisit it on remand —

if it sees fit so to do — in light of this opinion.



                                    IV.

     Pursuant to the foregoing, we affirm the district court’s

ruling on the expert witness, reverse its ruling on the MSHA

Report, vacate the summary judgment award, and remand for such

further proceedings as may be appropriate.



                                   AFFIRMED IN PART, REVERSED IN PART,
                                         VACATED IN PART, AND REMANDED




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