Case: 12-60886      Document: 00512357412   Page: 1   Date Filed: 08/29/2013




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                 Fifth Circuit

                                                                  FILED
                                                                August 29, 2013

                                 No. 12-60886                    Lyle W. Cayce
                               Summary Calendar                       Clerk




ACCIDENT INSURANCE COMPANY,

             Plaintiff

v.

CLASSIC BUILDING DESIGN, L.L.C.,

             Defendant-Cross Defendant - Appellee

v.

MARTHA PACE,

             Defendant-Cross Claimant-Third Party Plaintiff - Appellant

v.

ROBERT D. BREWER,

             Third Party Defendant - Appellee



                Appeal from the United States District Court
                  for the Southern District of Mississippi
                           USDC No: 2:11-CV-33
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                                       No. 12-60886

Before KING, CLEMENT, and HIGGINSON, Circuit Judges.
PER CURIAM:*
       Martha Pace appeals the district court’s entry of summary judgment in
favor of Classic Building Design, L.L.C. (“Classic”) and Robert Brewer in this
matter arising out of a personal injury claim. We AFFIRM.
                           FACTS AND PROCEEDINGS
       On September 2, 2005, Pace and her husband bought a house in Lamar
County, Mississippi, from Brewer. Brewer is the sole member of Classic, which
built the house. On February 26, 2010, a light fixture fell from the ceiling in a
bathroom and struck Pace on her head, injuring her. Shortly thereafter, Pace’s
attorney contacted Brewer and asked to be put in touch with Classic’s liability
insurer. Classic then informed its insurer, Accident Insurance Company (“AIC”),
about the incident and requested coverage.
       AIC filed for declaratory relief in the district court on February 17, 2011,
naming Classic and Pace as defendants, seeking a judgment that AIC’s policy
with Classic did not extend to cover Pace’s claims. On March 22, Pace filed an
answer, counter-claim, and cross-claim against Classic, alleging injury resulting
from the incident. Pace claimed that Classic had negligently and improperly
installed her light fixture and had negligently screened, trained, and supervised
workers on the job site. On July 18, Pace filed a third party complaint against
Brewer, and her Second Amended Complaint, filed on August 12, alleged claims
substantially the same as those in her earlier pleadings, naming both Classic
and Brewer (the “appellees”) as defendants.
       The case proceeded with discovery, with both Pace and the appellees
producing expert witnesses. On July 6, 2012, the appellees filed a motion for


       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.

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                                    No. 12-60886

summary judgment and a motion in limine, seeking to exclude the testimony of
Pace’s proffered expert witness, electrician James R. Neal. Neal had stated in
an initial written opinion that errors in the light fixture’s installation,
specifically a failure to tighten a certain connection, had caused the light fixture
to fall. At his deposition, after viewing photos of the light fixture after its fall to
which he had not previously had access, Neal changed his opinion and stated
that a failure to tighten a different connection had caused the fixture to fall.
Finally, in a supplemental report filed after his deposition, Neal stated that a
failure to tighten one of three connections during the installation process had
caused the fixture to fail.
      In an order dated September 7, the district court granted in part the
appellees’ motion in limine, excluding Neal’s original written opinion, but denied
in part the motion inasmuch as it applied to Neal’s deposition testimony and
subsequent supplemental report. The district court then granted the appellees’
motion for summary judgment, holding that Pace had failed to introduce
sufficient evidence to create a material issue of fact with respect to her
negligence and negligent supervision claims.
      Pace appeals the district court’s summary judgment order.
                              STANDARD OF REVIEW
      “We review a district court’s grant of summary judgment de novo, applying
the same legal standards as the district court.” Davis-Lynch, Inc. v. Moreno, 

, 549 (5th Cir. 2012). Summary judgment is appropriate when “there
is no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Id. (quoting FED. R. CIV. P. 56(c)).
                                   DISCUSSION
      Pace argues that the district court erred in granting summary judgment.
Before the district court, Pace alleged that her negligence claim was sufficiently
supported either by her expert Neal’s testimony or by a theory of res ipsa

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                                   No. 12-60886

loquitur. She also argued that she had submitted sufficient evidence to support
her negligent supervision claim. On appeal, Pace only contends that the district
court erred in granting summary judgment on her direct theory of negligence
liability. As a result, we consider any argument with respect to res ipsa loquitur
and her negligent supervision claim to be waived.            See United States v.
Thibodeaux, 

, 912 (5th Cir. 2000) (“It has long been the rule in this
circuit that any issues not briefed on appeal are waived.”).
      The only direct evidence that Pace introduced that tended to support
liability for the appellees was the expert testimony in Neal’s deposition and
supplemental report that an installation failure, which violated a standard of
care, had been the cause of the light fixture falling. The district court, exercising
its gatekeeping obligation under Federal Rule of Evidence 702, held that Neal’s
“opinions simply fail to rise above the speculative level,” were therefore
unreliable, and thus did “not create an issue of fact precluding summary
judgment.”
      “This Court reviews the admissibility of expert testimony for abuse of
discretion.” Factory Mut. Ins. Co. v. Alon USA L.P., 

, 523 (5th Cir.
2013) (quoting Primrose Operating Co. v. Nat’l Am. Ins. Co., 

, 561
(5th Cir. 2004)). In this context, “[t]he district court’s discretion will not be
disturbed on appeal unless its decision was manifestly erroneous.” Id. We see
no such abuse of discretion in the district court’s decision.
      Neal’s opinion as to the cause of the light fixture’s failure changed at least
twice over the course of discovery. As the district court noted, the light fixture
did not fall until four years after it was installed, and Neal himself did not
examine the light fixture until two years after it fell. In light of the lack of
conclusiveness of Neal’s offered testimony and the extremely attenuated
timeline, we decline to hold that the district court’s decision was “manifestly
erroneous.” Id. Because Neal’s unreliable testimony was the only evidence Pace

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                                No. 12-60886

presented that tended to support the breach and causation elements of her
negligence claim, the district court’s entry of summary judgment was proper.
                              CONCLUSION
     For the foregoing reasons, we AFFIRM the judgment of the district court.




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