[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
MARCH 14, 2007
No. 06-12660 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 02-20969-CV-DLG
RACHEL MCCOOL, as Personal Representative of
the Estate of Donald McCool, deceased, on behalf
of the Estate and on behalf of the survivors of
Decedent, Donald McCool, individually,
DONALD M. MCCOOL,
Plaintiffs-Appellants,
versus
BRIDGESTONE/FIRESTONE NORTH AMERICAN TIRE,
LLC, a foreign corporation, f.k.a.
Bridgestone/Firestone, Inc.,
FIRESTONE TIRE AND RUBBER COMPANY,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(March 14, 2007)
Before DUBINA, CARNES and HULL, Circuit Judges.
PER CURIAM:
Plaintiffs Rachel McCool, as representative for her husband’s estate, and her
son, Donald M. McCool, appeal the district court’s order entering final judgment in
favor of defendants in this products liability action. After review, we affirm.
I. BACKGROUND
A. Accident
Donald L. McCool and his son were riding in a pickup truck when McCool
lost control of the vehicle, it crossed into the median and rolled over, killing
McCool and injuring his son. McCool’s widow and son (“plaintiffs”) filed this
lawsuit in Florida state court, alleging that the fatal accident was caused by one of
the pickup’s Firestone steel belted radial tires when the tread and outer steel belt
suddenly separated from the main body of the tire. Plaintiffs asserted claims
against defendants for negligent and defective design and manufacture and failure
to warn.
B. Discovery and MDL Proceedings
Defendants removed the action to the Southern District of Florida based on
diversity jurisdiction. The action was then transferred to the Southern District of
Indiana for consolidated multi-district litigation (“MDL”). While in MDL,
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plaintiffs retained William Nonnamaker, a tire failure analyst, as their expert
regarding the alleged defect in the tire.
Nonnamaker produced a Rule 26 expert report, prepared August 28, 2002, in
which Nonnamaker opined, after inspecting the tire, that it had failed because
defendants failed “to design in an adequate safety margin and/or to maintain tight
enough tolerances in the manufacture of the tire . . . .” The report explained that
“built in weakness between the two steel belts along both edges caused separations
to develop” as the tire aged and that this condition “combined with the centrifugal
force of the rotation of the tire caused the tread and outer steel belt to come
completely off of the balance of the tires.” The report concluded that the tread
separation “created a vehicle handling control problem . . . .” The report also
contained a series of observations from Nonnamaker’s visual inspection of the tire,
including measurements and notations about the tire’s condition. However, the
report did not explain how these notations supported Nonnamaker’s conclusion
that the tire’s design had failed to include an adequate safety margin. Nor did the
report identify any scientific studies, industry testing or peer-reviewed articles to
support Nonnamaker’s opinion.
On September 25, 2003, defendants deposed Nonnamaker. During the
deposition, Nonnamaker stated that an adequate safety margin would have been to
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include “nylon overlays” or “nylon cap plies” and that defendants’ failure to
include nylon cap plies in McCool’s steel belted radial tire caused the tire to fail.
The only support for Nonnamaker’s opinion cited during his deposition was the
fact that other tire experts held the same opinion. Nonnamaker admitted that he
had no experience in the design of steel belted radial tires or of nylon cap plies in
such tires, had never tested nylon cap plies in tires, had not published his theory
about the protective effect of nylon cap plies in steel belted radial tires and was not
aware of any other peer-reviewed publications regarding such a theory. Although
Nonnamaker mentioned that he had seen test data that indicated that nylon cap
plies improved the performance of tires, he did not bring that test data to his
deposition or list the data in his Rule 26 report. Nonnamaker also indicated that he
had not reviewed any documentation of a comparison between tires with and
without nylon cap plies that showed that nylon cap plies reduced tread belt
separation and that he could not identify any tests of steel belted radial passenger
tires that showed that nylon cap plies prevent tread belt separation.
Defendants moved for summary judgment. The MDL court granted
summary judgment on all of plaintiffs’ claims except the defective design claim.
With regard to this claim, the MDL court noted that Nonnamaker’s testimony
regarding the tire’s lack of a nylon cap ply was “barely” sufficient evidence to
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support a jury finding of defective design, as follows:
As for the plaintiffs’ design defect claim, however, Mr.
Nonnamaker testified that the subject tire was defective because it did
not have a nylon cap ply and that “nylon cap plies would have meant
that the tire would not have failed when it did. It would have given
additional service life.” While Mr. Nonnamaker provides little, if any
scientific basis for this conclusion, that is, nonetheless, his expert
testimony, and, in the event it survives Firestone’s inevitable Daubert
challenge, it would be sufficient evidence, albeit barely, from which a
jury reasonably could conclude that the tire was defective and that the
defect caused the tire failure.
The MDL court remanded the action to the Southern District of Florida for further
proceedings on the remaining design defect claim.
C. Daubert Motion and Response
The district court set trial for the two-week trial calendar beginning February
6, 2006. On October 20, 2005, defendants filed a Daubert motion, seeking to
exclude Nonnamaker’s expert testimony because Nonnamaker was not qualified to
testify on the alleged design defect and Nonnamaker’s expert opinion was
unreliable. On November 4, 2005, one day before plaintiffs’ response to the
Daubert motion was due, plaintiffs sought an extension of time. The district court
granted plaintiffs’ request and directed plaintiffs to file their response within thirty
days, that is, by December 8, 2005.
On December 5, 2005, plaintiffs sought an additional extension through
December 14, 2005. Plaintiffs’ motion noted that defendants did not oppose an
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extension through December 12. By December 8, the district court had not ruled
on plaintiffs’ motion for an extension of time.
Nonetheless, plaintiffs did not file their response to the Daubert motion on
the court-ordered due date of December 8. Instead, plaintiffs attempted to file their
response on December 12. Although the clerk’s office accepted plaintiffs’ Daubert
response and stamped it filed, the docket clerk crossed out the word “filed” and
wrote the word “Rec’d” in its place and did not enter the Daubert response on the
docket. Also on December 12, plaintiffs filed a motion for a Rule 104(a) hearing
on defendants’ Daubert motion.
On that same day, the district court denied plaintiffs’ motion for an
extension of time and ordered plaintiffs to show cause for failing to comply with
the court-ordered deadline of December 8. Plaintiffs responded that they had
moved for an extension of time and had met the extended deadline agreed to by
opposing counsel.
After conducting a show cause hearing, the district court entered an order in
which it explained that the parties could not amend court-ordered filing deadlines
and concluded that plaintiffs had not filed their Daubert response by the court-
ordered deadline of December 8. The district court also found that plaintiffs’
Daubert response had never been filed, as reflected on the docket, and stated that it
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would not consider unfiled pleadings. The district court noted that plaintiffs’
Daubert response had been received by the clerk’s office on December 12, after the
court-ordered deadline. Thus, the district court concluded that plaintiffs’ Daubert
response would have been untimely even if it had been filed. The district court
ordered plaintiffs to retrieve all copies of the unfiled Daubert response from the
clerk’s office. It also set a Rule 104 hearing on defendants’ Daubert motion for
January 17, 2005 and denied as moot plaintiffs’ motion for a Rule 104 hearing.
D. Rule 104 Hearing
At the Rule 104 hearing, plaintiffs called Nonnamaker to testify. While
Nonnamaker was answering questions about his work experience in the 1950s, he
paused long enough that the district court noted it on the record, as follows:
Q. In order to address the judge’s concern, Mr. Nonnamaker,
would you be more specific as to the periods of time that you worked
at Firestone from ‘51 to ‘56, if you could detail each position that you
had and what you did in each position.
A. At 1951 to 1956, initially I was involved with the - -
(Pause.)
Q. I’m sorry, did you say something?
A. No, I’m sorry, I did not.
THE COURT: The record should reflect that there’s a long
pause. I’m not sure what’s happening.
MR. CABEZAS: I don’t know what’s happening either,
Judge.
BY MR. CABEZAS:
Q. Are you okay, Mr. Nonnamaker?
A. Yes.
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Q. Do you understand my question?
A. I do.
Plaintiffs’ counsel then repeated his question, and Nonnamaker answered it.
Plaintiffs’ counsel posed another question about Nonnamaker’s employment in the
1950s. While answering, Nonnamaker again paused, prompting counsel to request
a brief recess. The district court granted the request, noting for the record that
“after questions are responded to in part, there’s a long pause.” After a seven
minute recess, plaintiffs’ counsel stated that plaintiffs were ready to proceed, and
Nonnamaker continued testifying until lunch without further incident.
Nonnamaker testified that he had performed over 3,000 failure analyses of
tires. Nonnamaker stated that a “failure analysis” of a tire involved conducting a
“visual and tactile examination” of the tire under bright lights and then recording
all the significant conditions and markings that would indicate the reason for a
failure. Nonnamaker also testified that a steel belted radial tire experiences tread
belt separation because of “the absence of a nylon overlay to assist in protecting
against the sharp edges of the steel belt” and opined that the absence of a nylon
overlay or nylon cap plies was a defect in the design of McCool’s steel belted
radial tire.1 In forming this opinion, Nonnamaker testified that he relied upon his
1
Nonnamaker also explained that a nylon overlay or nylon ply is made up of individual
nylon cords that run around the tire over the top of the steel belts and under the tread. According
to Nonnamaker, the nylon overlay provides a transition between the stiff steel and the flexible
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experience in examining tires and “the tests that have been conducted by various
companies that support that a nylon overlay improves the tire life.” However, the
tests to which Nonnamaker referred were not introduced into the record.
During the hearing, defendants objected to Nonnamaker’s references to the
tests, arguing that they had not been disclosed in his Rule 26 report or produced
during his deposition. Plaintiffs’ counsel explained that the tests to which
Nonnamaker referred had been given to Nonnamaker in other litigation, were no
longer in his possession, and were the subject of confidentiality orders.
After a lunch recess, plaintiffs’ counsel informed the district court that, after
speaking with Nonnamaker, both he and Nonnamaker had concerns about
Nonnamaker’s memory and his competency to testify, as follows:
MR. CABEZAS: He has shared with me that he stopped
taking new cases since June of last year, since June of 2005, and
between then and now, this is the first time that he has testified in
open court and he’s concerned that, you know, the stress related to
that may have brought even more to light his concerns with his
slowing down mentally, his ability to recall things, and I’m concerned
with the competency of his testimony. So I would - - if you want me
to elicit that information from him directly, I will, but that’s
essentially what he shared with me, and I’m concerned about our - -
my client’s rights going forward.
THE COURT: Well, Mr. Nonnamaker, you have heard the
attorney summarize your feelings or thoughts. Do you concur with
the statement he just made?
rubber at the edge of the steel belts, by “absorbing the transmission from the stiffness of the steel
to the rubber in which it’s encased.”
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THE WITNESS: I certainly do and I apologize.
THE COURT: No, you don’t have to apologize. All sorts
of things happen in the course of human events and so I don’t want
you to feel sorry. I appreciate you bringing it to the Court’s attention.
In essence, are you concerned about your ability to be able to recall
and give fair and accurate testimony about the events that you have
previously testified about?
THE WITNESS: Right. I found that it was a great surprise to
me this morning when it occurred and I have no explanation except
that I was just having problems recalling, which tended to smooth out
some, but I’m still concerned, and concerned for the people that are
involved, for my client that I’m working for, but primarily for the
people that he represents.
Plaintiffs’ counsel asked for a continuance to permit Nonnamaker to seek medical
attention to determine if his ability to testify was impaired. The district court
concluded that the hearing should continue because Nonnamaker had indicated that
the memory problem had “smoothed out” as he continued testifying, as follows:
THE COURT: Well, I think we should continue with the
testimony because as he stated, things appeared to smooth out, as you
said, as he went along. Let’s just finish the testimony and then Mr.
Nonnamaker can consult with any medical authorities that he desires
and then we can decide where we are at that time. We only have, as
you stated, about 30 more minutes of testimony and so there’s no need
in suspending testimony at this time, frankly, based upon what I have
observed.
Have you had any difficulty prior to today?
THE WITNESS: Nothing like this. It was so minor. It was
one of the reasons for, in June, going ahead and deciding to not take
any new cases, but I had no problems like this.
THE COURT: Well, you paused a bit early on, but as you
continued testifying, I didn’t notice any hesitation. Were you
experiencing something later on in your testimony?
THE WITNESS: No, it came around but I was very concerned
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about the initial problem and what was occurring there.
THE COURT: After the initial pauses that I made reference
to on the record, did you experience difficulty after that point in time?
THE WITNESS: No, it - - everything tended to smooth out.
THE COURT: Okay. All right. Well, let’s continue today
and then he can consult with his physicians.
Nonnamaker then corrected one piece of his morning testimony that he said was
inaccurate and finished testifying.2
During redirect, the district court allowed Nonnamaker as part of a proffer to
describe the tests he had relied upon in forming his expert opinion. In so doing,
Nonnamaker read directly from an affidavit he had prepared and which had been
attached to plaintiffs’ unfiled Daubert response, listing various tire industry testing,
internal memoranda addressing such testing and deposition testimony of tire
industry officials in other litigation discussing such testing.
After Nonnamaker’s testimony concluded, plaintiffs’ counsel renewed his
motion for a continuance based on Nonnamaker’s inability to recall certain events.
The district court denied the motion, stating “frankly, I didn’t note any problem
with the issue that you’re raising. There may be other problems, but I’m not sure
that the methodology, which is the true measure of this proceeding, suffers at all,
2
Before lunch, Nonnamaker had testified that he had never seen a certain videotape
relating to testing of tires with and without nylon cap plies. After lunch, Nonnamaker testified
that he had seen the videotape in connection with another case and had recalled this fact during
cross-examination. The district court asked Nonnamaker whether he recalled mis-speaking at
any other time during his testimony and Nonnamaker responded that he did not.
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based on prior depositions, et cetera.”
After hearing argument from the parties, the district court took defendants’
Daubert motion under advisement. In response to an inquiry from plaintiffs’
counsel regarding the Daubert response plaintiffs had attempted to file, the district
court indicated that it had held the Rule 104 hearing because plaintiffs had not filed
a Daubert response, as follows:
MR. CABEZAS: . . . .
And speaking of that, to the extent that [the district court grants
defendants’ Daubert motion], and in order to preserve the record, I
would like some guidance from the Court with respect to the Daubert
response that Your Honor did not allow me to file.
THE COURT: Daubert response?
MR. CABEZAS: I had prepared a Daubert response, I don’t
know if Your Honor recalls.
THE COURT: That’s why we had the hearing.
MR. CABEZAS: I’m sorry?
THE COURT: This is why we had the hearing.
MR. CABEZAS: I understand that.
THE COURT: So that you could introduce everything that
you wanted to introduce on the subject. That’s why we’ve been here
all day.
E. Daubert Ruling and Summary Judgment
Following the hearing, plaintiffs filed an emergency motion for leave to
substitute their expert witness and to continue the trial. Plaintiffs argued that,
based on his memory lapses during the Rule 104 hearing, Nonnamaker was not
competent to testify. On February 1, 2006, the district court denied the emergency
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motion, noting that the case had been pending for nearly four years and was two
weeks away from trial and that plaintiffs had an adequate opportunity to develop
Nonnamaker’s testimony and provide support for his opinion.
On the same day, the district court granted defendants’ Daubert motion. The
district court found that Nonnamaker was not qualified as an expert on the subject
matter of nylon cap ply tires. In addition, the district court concluded that the
methodology Nonnamaker used to reach his conclusions was not sufficiently
reliable under the Daubert factors and that Nonnamaker’s testimony would not
assist the jury. The district court also noted, “Mr. Nonnamaker claims that he has
seen test results that indicate support for his opinion, but these test results have not
been produced or offered into evidence in this case.”
Defendants renewed their motion for summary judgment, arguing that
plaintiffs could not prove their defective design claim without an expert witness.
Plaintiffs filed a motion for a continuance pursuant to Federal Rule of Civil
Procedure 56(f) and requested time to find a substitute expert because Nonnamaker
was incompetent to testify. The district court denied plaintiffs’ Rule 56(f) motion
and granted summary judgment in favor of defendants. In so doing, the district
court stated that plaintiffs’ Rule 56(f) motion was a “conspicuous attempt to move
for reconsideration of the Court’s February 1, 2006 Order denying Plaintiffs’
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Emergency Motion for Continuance of Trial.” The district court concluded that
replacing an expert that already has been excluded on Daubert grounds was not a
valid basis for granting a Rule 56(f) continuance. The district court clarified that it
had not excluded Nonnamaker because of any memory deficiencies he exhibited
during the hearing, but because he was not qualified as an expert and his opinion
was not reliable, as follows:
Contrary to Plaintiffs’ assertion, this Court excluded Mr.
Nonnamaker’s opinion testimony because, inter alia: 1) he lacks the
training, education, or experience to offer testimony on the nylon cap
ply issue; 2) he has never been involved in the design or manufacture
of any steel-belted radial tire; 3) the methodology by which Mr.
Nonnamaker reached his conclusions is not sufficiently reliable as
determined by the sort of inquiry mandated by Daubert; and 4) Mr.
Nonnamaker’s theory concerning the nylon cap ply defect has not
been tested, and has not been subject to peer review and publication.
Mr. Nonnamaker was not excluded due to some “mental”
incompetence.
The district court concluded that plaintiffs should not be permitted to shore up their
case by finding a second expert before the district court ruled on defendants’
summary judgment motion.
F. Motion to Alter or Amend Judgment
On February 24, 2006, plaintiffs filed a motion to alter or amend the
judgment based on Nonnamaker’s incompetency. Affidavits attached to the
motion indicated that Nonnamaker recently had been diagnosed with Parkinson’s
14
disease and dementia. Plaintiffs also argued that the district court erred when it
refused to allow them to file their untimely Daubert response.
On March 30, 2006, the district court denied plaintiffs’ motion to alter or
amend the judgment. The district court again rejected plaintiffs’ argument that it
had based its Daubert ruling on Nonnamaker’s incompetent testimony and noted
that plaintiffs had ignored Nonnamaker’s deficiencies apparent in his expert
witness report and deposition testimony and the lack of other evidentiary support
for Nonnamaker’s expert opinion. The district court again clarified the basis for its
Daubert ruling, citing each of the reasons for its decision to exclude Nonnamaker,
none of which implicated Nonnamaker’s newly discovered mental condition. The
district court also emphasized that it had not relied solely upon Nonnamaker’s
hearing testimony in reaching its decision, but also had considered the defendants’
motion to exclude and Nonnamaker’s prior deposition testimony, which was given
when Nonnamaker’s competence was not at issue. The district court concluded
that “[b]ecause [Nonnamaker] was excluded on Daubert grounds based on
Defendant’s motion and [Nonnamaker’s] prior deposition testimony, he would not
have been permitted to testify at trial. As such, his present or future mental
condition is immaterial.”
With regard to the unfiled Daubert response, the district court reiterated that
15
the written response was not considered because it was untimely. However, the
district court explained, plaintiffs had been given an opportunity to present their
response at the Rule 104 hearing.
Plaintiffs filed this appeal.
II. DISCUSSION
A. Requests for Continuance
On appeal, plaintiffs argue that the district court abused its discretion when it
denied their requests for a continuance and to substitute their expert witness, who
was incompetent. The “denial of a continuance is within the broad discretion of
the district court and will not be overturned unless arbitrary or unreasonable.”
Quiet Tech. DC-8, Inc. v. Hurel-Dubois UK Ltd., 326 F.3d 1333, 1351 (11th Cir
2003) (quotation marks omitted). We consider the following four factors in
reviewing a district court’s denial of a request for a continuance: “(1) the moving
party’s diligence in its efforts to ready its case prior to the date set for hearing; (2)
the likelihood that the need for a continuance would have been remedied had the
continuance been granted; (3) the extent to which granting the continuance would
have inconvenienced the court and the opposing party; and (4) the extent to which
the moving party might have suffered harm as a result of the district court’s
denial.” Rink v. Cheminova, Inc., 400 F.3d 1286, 1296 (11th Cir.), cert. denied,
16
___ U.S. ___, 126 S. Ct. 419 (2005).
Here, factors one, three and four weigh heavily in favor of the defendants
and show that the district court did not abuse its discretion in denying plaintiffs’
request for a continuance either before or after the Daubert ruling. The first factor
– the moving party’s diligence in preparing for the hearing – appears at first blush
to militate in favor of plaintiffs. As plaintiffs emphasize, they appeared at the Rule
104 hearing with Nonnamaker, ready to proceed. At the time, plaintiffs were
unaware of Nonnamaker’s memory problems, and they requested a continuance as
soon as the memory problems became apparent during the hearing.
However, as the district court explained, plaintiffs’ lack of diligence was not
in failing to appear at the hearing, but in failing to prepare adequately for the
Daubert challenge by producing evidence indicating Nonnamaker’s expert opinion
was reliable. It is undisputed that plaintiffs failed to produce such supporting
evidence as part of Nonnamaker’s Rule 26 report or in response to the subpoena
duces tecum attached to the notice of Nonnamaker’s deposition. Nor did plaintiffs
attempt to introduce such evidence at the Rule 104 hearing.
Indeed, the only support plaintiffs provided for Nonnamaker’s expert
opinion was Nonnamaker’s own testimony that other expert witnesses shared his
opinion and that he either was aware of or had reviewed in the past test data or
17
internal memoranda from tire companies discussing test data that he contended
supported his views. However, none of the test data or internal memoranda were
produced during discovery or submitted to the district court during the hearing.
The absence of any documentary evidence, such as peer-reviewed articles or
scientific studies or testing, is a particularly glaring omission given that
Nonnamaker conducted no studies or testing of his own and had never published
his nylon cap ply theory for peer review. In essence, although plaintiffs appeared
at the Rule 104 hearing, their entire defense to defendants’ Daubert challenge
rested on Nonnamaker’s seemingly conclusory opinion. This is not the sort of
diligent preparation one would expect for a Daubert challenge.
As for the third factor, granting plaintiffs’ request for a continuance would
have greatly inconvenienced both the district court and the defendants. At the time
of the Rule 104 hearing, the case had been pending for four years. Defendants had
deposed Nonnamaker and prepared a Daubert challenge based on Nonnamaker’s
deposition and his Rule 26 report. Discovery had closed, and trial was set to begin
on February 6, just three weeks later. Granting plaintiffs’ request would have
postponed not only a ruling on the Daubert motion, but also the trial. Plaintiffs
ultimately sought to designate a substitute expert based on Nonnamaker’s
diagnoses. As plaintiffs admit, Defendants would have had to invest more time
18
and effort to determine the reliability of this newly designated expert, reviewing a
second Rule 26 report, deposing the new expert, and perhaps having to file and
defend a second Daubert motion. Thus, trial would have been postponed for a
significant period of time.
The fourth factor also weighs in defendants’ favor because plaintiffs were
not seriously prejudiced by the district court’s denial. Despite plaintiffs’ insistence
that Nonnamaker was incompetent during the Rule 104 hearing and could not
properly present the foundation for his opinion, plaintiffs do not identify any
material defects in Nonnamaker’s Rule 104 hearing testimony resulting from his
memory loss. Plaintiffs’ only example is Nonnamaker’s testimony covering points
raised in his affidavit stricken as part of the untimely Daubert response. Plaintiffs
contend that Nonnamaker could not remember the details of the issues addressed in
his affidavit, which included descriptions of the various testing and internal
memoranda Nonnamaker claimed to have reviewed in the past. However, as
plaintiffs concede, the district court permitted Nonnamaker to read directly from
his stricken affidavit during the hearing and Nonnamaker was asked follow-up
questions by both the district court and plaintiffs’ counsel.
The problem with plaintiffs’ Daubert evidence is not that Nonnamaker had
trouble at the hearing recalling the testing and internal memoranda he relied upon
19
in formulating his expert opinion. Rather, the problem for plaintiffs is that they
failed to produce the testing and internal memoranda for the district court to
evaluate as part of its Daubert analysis. Plaintiffs in effect asked the district court
to take Nonnamaker’s word that the testing was both scientifically sound and
supported his opinion.
The district court excluded Nonnamaker’s testimony on the merits, on
grounds unconnected to his memory problems during the Rule 104 hearing, and
plaintiffs do not challenge the merits of the district court’s Daubert ruling on
appeal. In short, plaintiffs’ case came undone long before the Rule 104 hearing,
when plaintiffs chose not to support Nonnamaker’s opinion with evidence
indicating that it was reliable under the Daubert factors.
We recognize that the second factor – plaintiffs’ diligence – appears to
weigh in favor of plaintiffs because a continuance of the Rule 104 hearing would
have given plaintiffs time to determine the cause of Nonnamaker’s memory
problems. However, a continuance would not have given plaintiffs time to address
the reliability concerns identified by defendants in their Daubert motion and
focused on by the district court in its Daubert ruling. These concerns were not
related to Nonnamaker’s memory lapses during the hearing, but instead related to
the lack of any scientific support for Nonnamaker’s opinion, such as studies,
20
testing or peer-reviewed articles. Any shoring up of Nonnamaker’s expert opinion
with scientific studies, testing data, et cetera, should have been done in the Rule 26
report or during Nonnamaker’s deposition. At a minimum, plaintiffs should have
attempted to introduce such evidence during the Rule 104 hearing. They did not.
Thus, even if the second factor weighed in favor of plaintiffs prior to the district
court’s Daubert ruling, it did not after Nonnamaker was excluded on the merits.
Under all the circumstances of this case, we cannot say the district court’s denial of
a continuance was arbitrary or unreasonable.
B. Daubert Ruling
Plaintiffs also argue that the district court erred in granting defendants’
Daubert motion. However, plaintiffs do not challenge the merits of the district
court’s Daubert ruling. Instead, plaintiffs contend that the district court should not
have ruled on the Daubert motion because, due to Nonnamaker’s alleged
incompetence during the hearing, plaintiffs were unable to defend their position
and the district court “did not have competent evidence from Plaintiffs to balance
against Firestone’s position.” This argument is merely a reformulation of
plaintiffs’ argument that they should have been given a continuance and is rejected
for the reasons already discussed.
C. Unfiled Daubert Response
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Plaintiffs contend that the district court abused its discretion when it refused
to permit them to file their untimely Daubert response. According to plaintiffs,
their failure to file the Daubert response on the court-ordered deadline was
excusable neglect under Federal Rules of Civil Procedure 6(b) and 60(b).3
Although these rules give a district court the discretion to accept an untimely filing
when excusable neglect is shown, they do not require a district court to do so.
Therefore, even assuming arguendo that plaintiffs’ reason for missing the filing
deadline constituted excusable neglect, we cannot say the district court abused its
discretion in refusing to permit plaintiffs to file their untimely Daubert response.
See Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 896 & n.5, 110 S. Ct. 3177, 3192
& n.5 (1990) (explaining that Rule 6(b) confers discretion on the district court to
accept untimely filings, but does not compel the district court to receive them).
AFFIRMED.
3
Rule 6(b) states in relevant part:
When by these rules or by a notice given thereunder or by order of court an act is
required or allowed to be done at or within a specified time, the court for cause
shown may at any time in its discretion (1) with or without motion or notice order
the period enlarged if request therefore is made before the expiration of the period
originally prescribed or as extended by a previous order, or (2) upon motion made
after the expiration of the specified period permit the act to be done where the failure
to act was the result of excusable neglect . . . .
Fed. R. Civ. P. 6(b) (emphasis added).
Rule 60(b) states in relevant part:
On motion and upon such terms as are just, the court may relieve a party or a party’s
legal representative from a final judgment, order, or proceeding for the following
reasons: (1) mistake, inadvertence, surprise, or excusable neglect . . . .
Fed. R. Civ. P. 60(b)(1) (emphasis added).
22