[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
NOV 18, 2008
No. 08-12087
THOMAS K. KAHN
Non-Argument Calendar
CLERK
________________________
D.C. Docket No. 06-00098-CV-CAR-5
JIMMIE BOWERS,
Plaintiff-Appellant,
versus
NORFOLK SOUTHERN CORPORATION,
NORFOLK SOUTHERN RAILWAY COMPANY,
CENTRAL OF GEORGIA RAILROAD COMPANY,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Middle District of Georgia
________________________
(November 18, 2008)
Before TJOFLAT, DUBINA and COX, Circuit Judges.
PER CURIAM:
Jimmie Bowers sued Norfolk Southern Corporation, Norkfolk Southern
Railway Company, and Central of Georgia Railroad Company under the Federal
Employers Liability Act. In his suit, Bowers alleged he was injured after riding on
a defective locomotive seat. Bowers sought to introduce expert testimony regarding
the cause of his injuries, but the district court granted the Defendants’ motion to
exclude Bowers’s expert testimony on causation. The district court then granted the
Defendants’ motion for summary judgment on the ground that Bowers failed to show
causation. Bowers appeals the grant of summary judgment.
On appeal, Bowers challenges the district court’s exclusion of the causation
testimony of Dr. David A. Miller, Dr. Arthur Wardell, Dr. Roy Baker, and Michael
O’Brien. Specifically, Bowers contends the district court abused its discretion in its
analysis of whether the expert testimony should be admitted under Fed. R. Evid. 702
and Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 113 S. Ct. 2786 (1993).
We review a district court’s ruling “on the admissibility of expert testimony for
abuse of discretion.” Allison v. McGhan Med. Corp., 184 F.3d 1300, 1306 (11th Cir.
1999).
Bowers first argues that the district court did not apply the appropriate test in
analyzing the admissibility of the expert testimony at issue in this appeal. Bowers
contends that McCorvey v. Baxter Healthcare Corp., 298 F.3d 1253 (11th Cir. 2002),
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requires a district court to use only the three-part test set forth in Fed. R. Evid. 702
to determine the admissibility of expert evidence. Accordingly, Bowers contends that
the district court abused its discretion in applying the factors enumerated in Daubert
and in the advisory committee notes to Fed. R. Evid. 702. We disagree. The district
court did apply the three-part test set forth in Fed. R. Evid. 702 and, as part of its
thorough and sifting analysis of the reliability prong of the test, considered the factors
set forth in Daubert and the advisory committee notes to Fed R. Evid. 702. In the
very case Bowers cites in support of his argument, we recognized:
In deciding whether these requirements of Rule 702 are met, Daubert
instructs courts to consider the following factors: (1) whether the
expert's theory can be and has been tested; (2) whether the theory has
been subjected to peer review and publication; (3) the known or
potential rate of error of the particular scientific technique; and (4)
whether the technique is generally accepted in the scientific community.
McCorvey, 298 F.3d at 1256 (citing Daubert, 509 U.S. at 593-94, 113 S. Ct. 2786).
It is obviously not an abuse of discretion, therefore, to apply the Daubert factors in
analyzing the admissibility of expert evidence. Additionally, in Kumho Tire Co., Ltd.
v. Carmichael, 526 U.S. 137, 119 S. Ct. 1167 (1999), the Supreme Court stated that
a trial judge has “broad latitude to determine” what factors are most appropriate to
apply in a given case. Id. at 152-53, 119 S. Ct. 1176. Therefore, we conclude it is not
an abuse of discretion for a district court to consider factors enumerated in the
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advisory committee notes to Fed R. Evid. 702 when analyzing whether expert
testimony is admissible under Fed. R. Evid. 702.
Bowers next argues that the district court abused its discretion in excluding Dr.
Miller’s expert testimony on causation. Bowers argues that the district court made
factual errors in its analysis. While most of Bowers’s arguments attempt to reargue
the facts presented to the district court, one argument merits discussion. Bowers
correctly contends that the district court made use of an unauthenticated document in
its analysis of the admissibility of Dr. Miller’s evidence on causation.1 But, the
district court only used the unauthenticated document in its analysis of one factor
enumerated in the advisory notes to Fed. R. Evid. 702. The district court reasoned
that Dr. Miller had not adequately accounted for obvious alternative explanations for
the cause of Bowers’s injury since he had not taken into account information on the
unauthenticated document. (R.4-85 at 37.) But the district court’s use of the
unauthenticated document in its discussion of one of the nine factors was not critical
to the outcome of its analysis. The district court found that all nine factors it
considered (the four Daubert factors and the five advisory committee factors) favored
1
During the deposition of Dr. Wardell, the Defendants introduced an exhibit, an emergency
room chart from Coliseum Health Services, which they never authenticated. (Dr. Wardell’s Dep.
70:5-6, Ex. D-6.) The Defendants later, while deposing Dr. Miller, asked questions about this
unauthenticated document. (Dr. Miller’s Dep. 52:13-17.)
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exclusion of the expert testimony. (R.4-85 at 34, 38.) We conclude that even without
relying on the unauthenticated document, the district court did not abuse its discretion
in excluding the expert testimony when eight of the nine factors the district court
considered counseled exclusion.
Bowers next argues that the district court abused its discretion in excluding the
expert evidence offered by Dr. Wardell and Dr. Baker. The crux of Bowers’s
argument is that the district court applied the wrong test to determine admissibility
of expert evidence. As discussed above, however, the district court has wide latitude
to determine the appropriate factors to use in its analysis. Here, the district court’s
application of the Daubert and advisory committee factors was both thorough and
careful. We conclude the district court did not abuse its discretion in excluding the
expert evidence offered by Dr. Wardell and Dr. Baker.
Bowers next argues that the district court abused its discretion in excluding the
expert testimony of Michael O’Brien. Specifically, Bowers contends that the district
court improperly credited the testimony of the Defendants’ fact witness over the
expert testimony of O’Brien. This is incorrect. The district court excluded O’Brien’s
testimony because he admitted he was not qualified to determine the cause of
Bowers’s back injuries. (R.4-85 at 47-48). The district court did not abuse its
discretion in excluding the expert testimony of O’Brien.
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Finally, Bowers argues the district court erred in granting summary judgment.
We disagree. Because Bowers cannot show causation, summary judgment for the
Defendants was appropriate. Accordingly, we affirm the district court’s grant of
summary judgment for the Defendants.
AFFIRMED.
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