                                                         [DO NOT PUBLISH]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),

                                          2
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



                                            3
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.)

                                               4
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.

                                           5
      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.




                                        6
