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

                                                                            FILED
                                                                          October 2, 2008

                                       No. 07-60792                   Charles R. Fulbruge III
                                                                              Clerk

GERALDINE CHAN, as administratrix of the Estate of Randy Brewer,
deceased, and on behalf of the heirs at law and beneficiaries of Randy Brewer,
deceased.

                                                  Plaintiff-Appellant
v.

ROGER COGGINS, Boyd Bros. Transportation, Inc.

                                                  Defendants-Appellees



                   Appeal from the United States District Court
                     for the Southern District of Mississippi
                             USDC No. 3:05-CV-00254


Before REAVLEY, STEWART, and OWEN, Circuit Judges.
PER CURIAM:*
       Plaintiff Geraldine Chan (“Chan”) appeals the district court’s grant of
motions to strike expert testimony and for summary judgment filed by
defendants Roger Coggins (“Coggins”) and Boyd Brothers Transportation, Inc
(“Boyd Brothers”). We AFFIRM.




       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
                                   No. 07-60792

             FACTUAL AND PROCEDURAL BACKGROUND


      On August 7, 2001, Coggins was traveling on Interstate-20 (“I-20”) West,
operating an 18-wheel tractor trailer owned by Boyd Brothers. He exited off I-20
and proceeded along the off-ramp toward the intersection with Gallatin Street.
The ramp splits at the intersection, and a separate lane curves to the right for
traffic heading northbound onto Gallatin Street.
      Two pedestrians, Randy Brewer and Marshall Allen, were panhandling at
the intersection. Both had been drinking heavily that day, and Brewer was
“pretty drunk” at the time of the events at issue. Confined to a wheelchair, Allen
was positioned in the street on the right side of the ramp as Coggins approached
the intersection. Brewer stood on the island separating the right and left turn
lanes. Coggins drove into the right lane, and to avoid Marshall, moved the
tractor-trailer to the left side of the right lane. He brought his truck to a stop at
the intersection and waited at the light to proceed north on Gallatin Street.
Brewer then approached Coggins’s cab, coming within approximately one foot
of the driver’s side door, and asked for money. Without rolling down the window,
Coggins told Brewer that he did not have money and motioned for Brewer to
back away from the truck.
      There is conflicting testimony about what followed. Coggins testified that
after waiving Brewer off, he watched Brewer take a step away from the truck,
he engaged his truck, and he moved toward northbound Gallatin Street.
Coggins further testified that after he began to move forward, Brewer moved
toward the back of the truck and was struck by the trailer tires. Joseph Pettit,
a motorist who witnessed the accident while he was stopped on Gallatin Street,
testified that Brewer was about a foot away from Coggins’s truck, that Coggins
waived Brewer to back away, and that Brewer then took about a half a step back
from the truck. Brewer testified that he turned his back as he began to step


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away from the truck and was pulled under the wheels as the truck moved
forward. Coggins drove forward a short distance and the rear wheels of the
tractor cab struck Brewer.      The wheels ran over Brewer's feet, legs, and
buttocks. He later died of those injuries.
      After the accident, Brewer filed suit against Coggins and against Boyd
Brothers on a theory of respondeat superior, alleging Coggins’s negligence was
the cause of his injuries. The case was dismissed when Brewer died. The
administratrix of Brewer’s estate, Geraldine Chan, initiated the present
diversity action for wrongful death caused by the alleged negligence of Coggins
and Boyd.
      Chan retained Victor Holloman, an accident reconstruction expert, to
testify as to how Brewer could have been struck by the tractor-trailer without
moving himself in front of the truck. He planned to do so primarily through
reference to the concept of “off-tracking.” Off-tracking refers to the extent to
which the rear wheels of a truck deviate from the path of the front wheels while
turning. Holloman reviewed the depositions of Brewer, Coggins, and Pettit, the
Mississippi Uniform Accident Report for the incident, and photographs related
to the case. He did not have access to the tractor-trailer Coggins drove in the
accident. He did not conduct any tests to reconstruct the events of the accident.
In his expert report and in deposition, Holloman stated his conclusion that after
Brewer asked for money, he turned to his left but before he could step away from
the truck, he was struck from behind by the truck because Coggins failed to
maintain a proper lookout. He acknowledged that he did not have any evidence
to rely on that contradicted Coggins’s testimony that he watched Brewer step
away from the vehicle before he started to move the truck forward. He asserted
that due to off-tracking, Coggins would have moved the truck to the left as he
moved forward in order to correct for the trailer’s off-tracking as he turned right.



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      Coggins and Boyd moved to strike Holloman’s testimony and for summary
judgment. After reviewing Holloman’s report and conducting a hearing on his
proposed testimony, the district court granted the defendants’ motion to strike
Holloman. The court then granted summary judgment in favor of Coggins and
Boyd. Chan appeals both rulings.


                                 DISCUSSION
                      I. Holloman’s Expert Testimony
                             a. Standard of Review
      This Court reviews the decision to admit or exclude expert testimony for
abuse of discretion. General Electric Co. v. Joiner, 522 U.S. 136, 139 (1997).
This standard applies to both (1) how the trial court evaluates the expert
testimony, and (2) the trial court’s ultimate determination whether or not to
admit the expert testimony. Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137,
152 (1999). The trial court enjoys wide latitude in determining the admissibility
of expert testimony, “and the discretion of the trial judge and his or her decision
will not be disturbed on appeal unless manifestly erroneous.” Smith v. Goodyear
Tire & Rubber Co., 495 F.3d 224, 227 (5th Cir. 2007) (internal quotations and
citations omitted). If we determine that the district court abused its discretion
by excluding evidence, we evaluate whether the error was harmless, “affirming
the judgment, unless the ruling affected substantial rights of the complaining
party.” Bocanegra v. Vicmar Servs., Inc., 320 F.3d 581, 584 (5th Cir. 2003).
                                   b. Analysis
      The district court determines the admissibility of expert testimony under
Fed. R. Civ. P. 702 according to the directions of Fed. R. Civ. P. 104(a). Daubert
v. Merrell Dow Pharms., Inc., 509 U.S. 579, 592-93 (1993). In short, the court
must find that the expert testimony is both relevant and reliable before it will
be admitted. Id. at 589. To do this, the court determines whether the reasoning

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and methodology underlying the expert’s testimony is scientifically valid and can
be properly applied to the facts of the case.       Evaluating the reliability of
proffered expert testimony, the district court looks beyond credentials and makes
sure that there is an adequate “fit” between data and opinion. See Moore v.
Ashland Chemical Inc., 151 F.3d 269, 276 (5th Cir. 1998). While Daubert lists
several factors that may be considered in assessing the reliability of expert
testimony, the Supreme Court has since emphasized that the analysis is a
flexible one. Particular Daubert factors may be more or less pertinent to the
district court’s inquiry, depending on the nature of the issue, the particular
expertise, and the subject of the expert’s testimony. Kumho Tire, 526 U.S. at
150. The objective is that the district court make certain that an expert,
“whether basing testimony on professional studies or personal experience,
employs in the courtroom the same level of intellectual rigor that characterizes
the practice of an expert in the relevant field.” Id. at 152.
      Chan argues that the district court abused its discretion in striking
Holloman’s testimony because Holloman’s credentials and experience in accident
reconstruction qualify him to provide expert testimony about the cause of the
accident. She further argues that Holloman adequately validated his hypothesis
by reference to the scientific concept of off-tracking, and the district court erred
by making improper factual determinations to reject the expert’s conclusion.
Coggins responds that the district court properly exercised its discretion in
ruling that Holloman’s testimony lacked a scientific basis and was based on
insufficient facts.
      Holloman’s credentials, previous testimony in a distinguishable case, and
Chan’s citation of one Pennsylvania case allowing expert testimony regarding
off-tracking do not persuade us that it was an abuse of discretion for the trial
court to determine that his expert opinion in this case was not reliable. “A court
may conclude that there is simply too great an analytical gap between the data

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and the opinion proffered.” Moore, 151 F.3d at 277. Although the district court’s
opinion does not provide a lengthy review of its analysis of Holloman’s expert
testimony or the reasoning behind the court’s conclusion that it lacked scientific
basis, there was no abuse of discretion in striking the testimony. A review of the
record amply supports the district court’s conclusion that because Holloman’s
opinion about the cause of the accident lacked a scientific basis and was contrary
to the facts in evidence, Holloman was not qualified under Rule 702 to opine
whether Coggins negligently ran over Brewer.
      Chan relies heavily on the fact that Holloman has previously testified as
an expert witness, pointing to Luckett v. Choctaw Maid Farms, Inc., 307 F. Supp.
2d 826, 830-31 (S.D. Miss. 2004). Although Holloman was qualified as an expert
in the case, Chan’s reliance on this fact is misplaced.       Holloman testified
regarding improperly functioning brakes, not off-tracking, and based his opinion
on, among other facts, the brake maintenance records for the truck in question.
Id. Clearly his factual basis and analytical methodology were more directly tied
to the subject of his testimony. In any event, being qualified as an expert in the
circumstances of one case does not qualify one as an expert in all future cases.
      Chan cites one case in which an expert testified about off-tracking to
support her argument that off-tracking is a judicially-recognized and accepted
phenomenon, and therefore the district court abused its discretion by excluding
Holloman’s testimony. In Lebesco v. Southeastern Pennsylvania Transportation
Authority, 380 A.2d 848, 850 (Pa. 1977), the state court allowed expert testimony
regarding off-tracking, reasoning that it would aid the jury in determining
whether it was a factor in the accident giving rise to the suit. Beyond Lebesco,
research uncovered only two other instances in federal or Mississippi caselaw
that discussed expert testimony of off-tracking, both clearly distinguishable from




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this context.1 The fact that off-tracking has been discussed in other cases is not
persuasive on the issue of whether the district court abused its discretion in
either the manner of evaluating Holloman’s proposed testimony or the district
court’s ultimate conclusion that Holloman’s discussion of off-tracking did not
provide a sufficient scientific basis for his opinion.
       Chan explains that the amount of off-tracking increases with the length
of the vehicle and sharpness of the turn, apparently arguing that because the
concept is relevant to the case it was an abuse of discretion for the district court
to disallow the testimony. This argument does not undermine the district court’s
finding that Holloman’s testimony lacked scientific basis.2 Even if the concept
is relevant, it does not necessarily follow that Holloman’s application of the
concept to the facts of the case is a proper “fit”.3 “[N]othing in either Daubert or
the Federal Rules of Evidence requires a district court to admit opinion evidence
that is connected to existing data only by the ipse dixit of the expert.” Kumho
Tire, 526 U.S. at 157 (rejecting expert’s assertion that his own methods were
accurate) (internal citation omitted).
       Finally, Chan argues that while portions of Holloman’s opinion were
contrary to Coggins’s testimony, they were consistent with Brewer’s testimony.



       1
         Raymond Motor Transp., Inc. v. Rice, 434 U.S. 429, 436 (1978) (expert testifying that
double trailers safer than singles due to reduced off-tracking, among other factors); Henderson
v. Norfolk So. Corp., 55 F.3d 1066, 1068, 1070 (5th Cir. 1995) (expert testifying that extreme
off-tracking of trailer caused by defective slide assembly).
       2
         Further, the record shows that off-tracking was not the cause of the accident. Brewer
was on the outside of the cab's turning radius, not inside where he might have been struck by
off-tracking wheels of the trailer. Even if the front wheels of the truck's cab were turned
sharply left to correct for additional off-tracking, he was parallel to the cab at the time and was
not struck by the front wheels.
       3
          The record demonstrates that Holloman did not follow the basic analytic framework
of the scientific method, conduct any basic tests of his assumptions, or work with concrete facts
about positioning, speed, tire direction, etc., despite his assertion that these were among the
factors that led to his conclusion that it was Coggins's driving errors that caused the accident.

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                                   No. 07-60792

On the contrary, a review of the witnesses’ depositions, Holloman’s deposition,
and his expert report demonstrates that Holloman’s reconstruction of the
accident also conflicts with Brewer’s testimony of his position at the time of the
accident.
                            II. Summary Judgment
                              a. Standard of Review
      This Court reviews the district court’s grant of summary judgment de
novo, applying the same standards as the district court. McLaurin v. Noble
Drilling (US) Inc., 529 F.3d 285, 288 (5th Cir. 2008). Summary judgment is
appropriate where there is no genuine issue of material fact and the moving
party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); Moore v.
Willis Indep. Sch. Dist., 233 F.3d 871, 874 (5th Cir. 2000). A fact is “material”
if it “might affect the outcome of the suit under governing law.” Bazan v.
Hidalgo County, 246 F.3d 481, 489 (5th Cir. 2001) (quoting Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986)). Evaluating a motion for summary
judgment, the court views the facts and the inferences to be drawn from them
in the light most favorable to the nonmoving party. Moore, 233 F.3d at 874. But
conclusory allegations, unsubstantiated assertions, or a mere “scintilla of
evidence” will not defeat summary judgment. Little v. Liquid Air Corp., 37 F.3d
1069, 1075 (5th Cir. 1994) (“We do not, however, in the absence of any proof,
assume that the nonmoving party could or would prove the necessary facts.”).
Summary judgment is mandated if the nonmoving party fails to make a showing
of evidence sufficient to establish the existence of an element essential to its case
on which it bears the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S.
317, 322 (1986).
                                   b. Discussion
      Chan asserts that even without Holloman’s testimony, there is conflicting
testimony about the events of the accident and sufficient circumstantial evidence

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to support a jury finding of negligence by Coggins under Mississippi law.
Coggins and Boyd argue that they are entitled to summary judgment because
the case contains no evidence that Coggins was negligent.
        Under Mississippi law the elements of negligence are: duty, breach,
causation, and damages. Magnusen v. Pine Belt Inv. Corp., 963 So.2d 1279, 1282
(Miss. Ct. App. 2007). Negligence may be proved by circumstantial evidence,
“provided that the circumstances are sufficient to take the case ‘out of the realm
of conjecture and place it within the field of legitimate inference.’” Thomas v.
Great Atlantic & Pacific Tea Co., Inc., 233 F.3d 326, 329-30 (5th Cir. 2000)
(quoting K-Mart Corp. v. Hardy, 735 So. 2d 975, 981 (Miss. 1999)). The jury
must be able to make a reasonable or reliable inference about negligence from
the circumstantial evidence. Mississippi Dep’t of Transp. v. Cargile, 847 So. 2d
258, 263 (Miss. 2003).
        Chan has not offered a scintilla of evidence of negligence on the part of
Coggins. No one disputes that Coggins’s truck came to a complete stop before
Brewer ever approached the truck. Brewer then either took a small step away
or began to turn.4 Brewer was not on the inside of the turning radius of the
truck, so any off-tracking by the trailer wheels did not threaten him.
Furthermore, he was struck by the wheels of the truck, not the off-tracking
trailer. None of the witnesses place Brewer in front and to the left of the cab of
Coggins’s truck, the only position where a forward movement with the wheels
turned extremely to the left might have struck Brewer. Brewer himself testified
that he was even with the door of Coggins’s truck. Indeed, the two had just
finished communicating with each other when Coggins engaged the truck to pull
away.

        4
         Although Coggins and Pettit testified that he stepped into the path of the truck,
defendants argue that, even ignoring that testimony, Chan has not provided evidence
explaining how Coggins could have struck Brewer, who was at least a foot or two away from
the cab before Coggins saw him step back.

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      All parties agree that Brewer was standing to the side of the truck, at least
a foot away from the cab door, at the time that the truck began moving.
Coggins’s uncontested testimony is that he watched Brewer in his side mirror
as he engaged the truck and began to move. Chan has not put forward sufficient
evidence to support a finding that Coggins breached a duty of care to Brewer, a
pedestrian already outside of the path of the truck and standing to the side of
the vehicle. Chan has not provided evidence that would take this case out of the
realm of conjecture. See Thomas, 233 F.3d at 330. Because there is no evidence
that Coggins breached any duty to Brewer to cause the accident, Chan cannot
establish the elements of negligence. Brewer was already out of the truck’s path,
and plaintiff has put forward no evidence of any negligent operation of the truck
by Coggins. Because there are no material facts at issue, we affirm the district
court finding of summary judgment for the defendants.


                                CONCLUSION
      For the foregoing reasons, the judgment of the district court is
AFFIRMED.




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