UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 99-60515
Summary Calendar
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DAVID A. HAMMOND,
Plaintiff-Appellant,
versus
COLEMAN COMPANY, The Coleman Company, Inc.,
Defendant-Appellee.
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Appeal from the United States District Court
for the Southern District of Mississippi
(2:98-CV-123-PG)
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February 1, 2000
Before SMITH, BARKSDALE, and PARKER, Circuit Judges.
PER CURIAM:*
David A. Hammond appeals the summary judgment dismissing his
product liability action against The Coleman Company, Inc., in
which he claimed, inter alia, that, as a result of a manufacturing
defect, he sustained injuries resulting from the explosion of a
lantern manufactured by Coleman. Hammond contends that the
district court reversibly erred by excluding the opinion of his
expert witness and by granting summary judgment for Coleman. See
Hammond v. Coleman Co., Inc., 61 F. Supp. 2d 533 (S.D. Miss. 1999).
At the outset, we reject Hammond’s contention that, for expert
testimony evidentiary rulings concerning a summary judgment motion,
*
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this opinion should not be published and is not precedent except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.
the de novo standard of review for such judgments supercedes the
abuse of discretion standard of review for rulings under FED. R.
EVID. 702. It is well-settled that exclusion of expert testimony
under that Rule is reviewed only for an abuse of discretion. See,
e.g., Boyd v. State Farm Ins. Cos., 158 F.3d 326, 331 (5th Cir.
1998) (“With respect to expert testimony offered in the summary
judgment context, the trial court has broad discretion to rule on
the admissibility of the expert’s evidence and its ruling must be
sustained unless manifestly erroneous”) (emphasis added), cert.
denied, ___ U.S. ___, 119 S. Ct. 1357 (1999).
Only after the evidence properly in the summary judgment
record is defined do we conduct our de novo review. See Munoz v.
Orr, ___ F.3d ___, ___, 2000 WL 6156, at *4 (5th Cir. 2000) (“We
... review the district court’s exclusion of plaintiffs’ expert’s
evidence ... for abuse of discretion, and then review de novo the
grant of summary judgment based on the evidence properly before the
district court”); Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 916
(5th Cir.), cert. denied, 506 U.S. 832 (1992). For that de novo
review, the summary judgment record is viewed in the light most
favorable to the non-movant. E.g., Wenner v. Texas Lottery Comm’n,
123 F.3d 321, 324 (5th Cir. 1997), cert. denied, 523 U.S. 1073
(1998).
We also reject Coleman’s assertion that the summary judgment
is based on the alternative ground that, even considering the
expert’s opinions, Coleman was nevertheless entitled to judgment on
the basis that Hammond failed to offer any evidence that the
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lantern was in substantially the same condition as when it left the
manufacturer. To the contrary, the court stated that, “[i]f that
were the only deficiency in [Hammond’s] proof”, it would follow a
decision by the Mississippi Supreme Court in which it “concluded
that circumstantial evidence was sufficient for a jury ... to
conclude that it was more probable than not that the [product]
immediately prior to the accident was in substantially the same
condition as when it left the hands of [the manufacturer]”.
Hammond, 61 F. Supp. 2d at 541-42 (internal quotation marks and
citation omitted).
Pursuant to a very detailed and painstaking examination of the
relevant materials, the district court concluded that the expert’s
methodology and the basis for his opinions did not satisfy the
criteria of Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S.
579 (1993), and Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137
(1999), Hammond, 61 F. Supp. 2d at 537-42, and excluded his
opinions because they “are too speculative to be admissible under
Rule 702". Id. at 542.
Based on our review of the expert’s reports and deposition,
and the district court’s opinion, id. at 537-42, it is apparent
that the district court properly exercised its gatekeeping role
under Daubert and Kumho. Restated, the ruling was not manifestly
erroneous. Therefore, we find no abuse of discretion in the
district court’s exclusion of the expert’s opinions. And, because
Hammond offered no other evidence to support his claim of a
manufacturing defect, summary judgment was proper. See Topalian v.
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Ehrman, 954 F.2d 1125, 1131 (5th Cir.) (“[T]he nonmovant must come
forward with evidence establishing each of the challenged elements
of its case for which the nonmovant will bear the burden of proof
at trial.”), cert. denied, 506 U.S. 825 (1992).
AFFIRMED
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