                                                                        F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                      UNITED STATES CO URT O F APPEALS
                                                                         May 30, 2007
                            FO R TH E TENTH CIRCUIT                  Elisabeth A. Shumaker
                                                                         Clerk of Court



    R OSW E LL T. WA R REN ,

                Plaintiff-Appellant,

    v.                                                    No. 06-3198
                                                  (D.C. No. 05-CV-1141-W EB)
    CO DY LYN N TA STOVE,                                   (D . Kan.)

                Defendant-Appellee.



                             OR D ER AND JUDGM ENT *


Before BR ISC OE, M cKA Y, and GORSUCH, Circuit Judges.


         In M ay 2003, Cody Tastove’s vehicle hit a tractor trailer operated by

Roswell W arren, a commercial truck driver. Nearly two years later, M r. W arren

had surgery on his left shoulder to repair a torn rotator cuff and shortly thereafter

filed this negligence action against M r. Tastove in federal court based on

diversity of citizenship. At trial, M r. Tastove conceded liability and put on no




*
       After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and
collateral estoppel. It may be cited, however, for its persuasive value consistent
with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
witnesses; M r. W arren presented testimony from himself and the physician who

performed his shoulder surgery, Eric E. Frische. After trial, the jury awarded

M r. W arren $18,600 for past economic losses, but nothing for future economic

losses and nothing for noneconomic injuries or medical expenses. Disappointed

with this result for he had sought damages in excess of $100,000, M r. W arren

appeals to us.

      The only proposition for reversal fairly advanced by M r. W arren concerns

the exclusion of a portion of Dr. Frische’s proffered testimony. 1 Dr. Frische

appeared by means of his videotaped deposition and the bulk of that deposition

was shown to the jury without objection. The district court, however, precluded

M r. W arren from presenting a brief portion of the deposition in which Dr. Frische

testified that “it would be unwise for [plaintiff] to resume driving an eighteen-

wheeler due to the limitation of his left arm function.” A plt. App. at 15. This

exclusion, M r. W arren tells us, dealt a decisive blow to his claims for future

economic losses and was predicated on error.




1
 Along the way, M r. W arren briefly attributes other errors to the district court but
develops only this argument in any detail. See Br. at 2. His other summary
assertions of error fail to afford us a sufficient basis to provide meaningful
appellate review. See United States v. Banks, 451 F.3d 721, 728 (10th Cir. 2006);
Phillips v. Hillcrest M ed. Ctr., 244 F.3d 790, 800 n.10 (10th Cir. 2001).

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      W e review the district court’s decision to admit or exclude evidence,

including expert testimony, for an abuse of discretion. Ralston v. Smith &

Nephew Richards, Inc., 275 F.3d 965, 968-69 (10th Cir. 2001). “A pplying this

standard, we will reverse the district court only if it made a clear error of

judgment or exceeded the bounds of permissible choice in the circumstances.”

M endelsohn v. Sprint/United M gmt. Co., 466 F.3d 1223, 1226 (10th Cir. 2006)

(quotation omitted). Plaintiff bears the burden of establishing that the district

court committed clear error or exceeded the bounds of permissible choice. See

Hernandez v. Starbuck, 69 F.3d 1089, 1093 (10th Cir. 1995).

      Although it is clear from M r. W arren’s brief that he disagrees with the

partial exclusion of Dr. Frische’s testimony, he fails to come to grips with the

reasons offered by the district court for its decision, let alone convince us an

abuse of discretion took place. The district court excluded the testimony at issue

on two grounds. First, it indicated that plaintiff had failed to identify any aspects

of Dr. Frische’s education, training, or experience that would qualify him to offer

an admissible opinion on whether M r. W arren’s injury precluded him from

pursuing his vocation as a truck driver. See Op. at 3-4; Tr. at 15-16. Second, the

district court was troubled by the equivocation and lack of explanation in D r.

Frische’s testimony. Rather than supply an opinion to a reasonable degree of

medical certainty based on specified medical grounds, the district court described

Dr. Frische’s proffered opinion as more akin to personal speculation and reliant

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on possibilities and surmise rather than reasonable medical probabilities. Id.

      Both of these bases for exclusion find support in the applicable rules and

our case law. Rule 702 of the Federal Rules of Evidence imposes on the

proponent of expert testimony the burden of showing that the proffered witness is

indeed able, by dint of education, training, or experience, to offer a meaningful

opinion on the issue at hand. M r. W arren supplies us, as he supplied the district

court, with no reason to think that Dr. Frische had a background sufficient for him

to opine on M r. W arren’s vocational prospects; this is sufficient reason to support

his exclusion. See LifeWise M aster Funding v. Telebank, 374 F.3d 917, 928 (10th

Cir. 2004) (holding that district court did not abuse its discretion in concluding

that witness lacked qualifications to render expert testimony); Ralston, 275 F.3d

at 971 n.4 (explaining that proponent of expert testimony bears burden of

demonstrating expert’s qualifications). 2 Likewise, we require an opining

physician to offer an opinion with a reasonable degree of medical certainty; a

hunch, even an educated hunch, is not enough. Dr. Frische testified only that it

would be “unwise” for M r. W arren to drive tractor trailers and offered no basis

for his opinion. Under these circumstances, we are unable to disagree with the

district court’s holding that Dr. Frische’s testimony fails to satisfy our demanding

standard, let alone that the court’s decision exceeded the bounds of legally



2
To be clear, the doctor may have such a background; we hold only that M r.
W arren failed to establish it in the record before us.

                                         -4-
permissible choices before it. See G oebel v. Denver and Rio G rande Western

R.R. Co., 215 F.3d 1083, 1088 (10th Cir. 2000) (“It is axiomatic that an expert, no

matter how good his credentials, is not permitted to speculate.”); Eastridge Dev.

Co. v. Halpert Assocs., Inc., 853 F.2d 772, 783 (10th Cir. 1988) (holding that trial

court did not abuse its discretion in excluding “tentative and speculative” expert

opinion).

      Affirmed.



                                                    Entered for the Court



                                                    Neil M . Gorsuch
                                                    Circuit Judge




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