                                                                         United States Court of Appeals
                                                                                  Fifth Circuit
                                                                               F I L E D
                 IN THE UNITED STATES COURT OF APPEALS                        December 28, 2005

                              FOR THE FIFTH CIRCUIT                        Charles R. Fulbruge III
                                                                                   Clerk



                                     No. 04-60803



      BETTYE MAXWELL,

                                                  Plaintiff-Appellant,

                                         versus

      FORD MOTOR CO., ET AL.,

                                                  Defendants,

      FORD MOTOR COMPANY,

                                                  Defendant-Appellee.


               Appeals from the United States District Court for
                     the Northern District of Mississippi
                          (USDC No. 2:02-cv-308)
      _________________________________________________________


Before REAVLEY, GARZA, and BENAVIDES, Circuit Judges.

PER CURIAM:*1


      *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not be published and is not precedent except under the limited circumstances set forth in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.
     We affirm the judgment of the district court for the following reasons:

1.   The door latch theory conflicts with Appellant’s pleading and prior claim

     concerning laminated and tempered door glass. The scheduling order required all

     amendments to be served by May 3, 2003 and required Appellant to designate

     witnesses by September 22, 2003. Appellant’s counsel requested production of

     door latch documents in January 2004. However, Appellant did not move to

     compel this production, or in any other way bring the door latch theory to the

     attention of the district court, prior to the motion for late designation of experts in

     May 2004. District courts consider four factors in determining whether the

     testimony of a late-designated expert witness should be permitted: 1) the

     explanation for the failure to identify the witness; 2) the importance of the

     testimony; 3) potential prejudice in allowing the testimony; and 4) the availability

     of a continuance to cure such prejudice. Hamburger v. State Farm Mut. Auto.

     Ins. Co., 361 F.3d 875, 883 (5th Cir. 2004). Appellant had notice of the

     alternative theory of defective door latches for at least four months before filing

     its motion. Late designation would have required Appellee to defend against a

     new theory of recovery without benefit of full discovery. For these reasons, the

     district court did not abuse its discretion in denying the late designation. The

     district court also held that if Appellee introduced direct testimony regarding a

     door latch, Appellant could use door latch evidence on rebuttal. However,

     Appellee did not introduce door latch evidence. The district court did not abuse

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     its discretion in excluding the door latch evidence.

2.   Trial judges enjoy “considerable leeway in deciding in a particular case how to go

     about determining whether particular expert testimony is reliable.” Kumho Tire

     Co. v. Carmichael, 526 U.S. 137, 152, 119 S. Ct. 1167, 1176, 143 L. Ed. 2d 238,

     252 (1999). It is not necessary for all Daubert factors to be addressed. Plaintiff

     was allowed to present full expert testimony supporting the claim of defective

     glass. In addition, the district court articulated concerns that Phillips was no

     longer an objective expert witness. The district court did not abuse its discretion

     in excluding Donald Phillips’ expert testimony.

3.   Appellant did not seek review of the Magistrate Judge’s decision excluding

     discovery concerning vehicles manufactured by Volvo. Appellant’s briefs do not

     cite any authority for the proposition that otherwise admissible evidence should be

     excluded on the basis of an unreviewed discovery order. The district court did not

     abuse its discretion in allowing Appellee to submit evidence in support of its

     state-of-the-art defense.

4.   The jury received a specific instruction to focus on the alleged defects in the Ford

     truck and the relationship of these defects to Maxwell’s injuries, rather than what

     caused the truck to leave the roadway. Appellant was not prejudiced by

     comments concerning the distance from the Maxwell home to the casino and

     accident site, the $500 cash on Maxwell’s body, or the condition of his cell phone.

5.   Federal Rule of Evidence 803(8)(C) provides a hearsay exception for public

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      records and reports including “factual findings resulting from an investigation

      made pursuant to authority granted by law, unless the sources of information or

      other circumstances indicate lack of trustworthiness.” Appellant objected that

      Appellee failed to carry its burden of showing that the NHTSA report was

      trustworthy. To the contrary, however, Appellant bore the burden of proving that

      the NHTSA report was untrustworthy. Moss v. Ole South Real Estate, Inc., 933

      F.2d 1300, 1305 (5th Cir. 1991) (“In light of the presumption of admissibility, the

      party opposing the admission of the report must prove the report’s

      untrustworthiness.”). “Opinions and conclusions, as well as facts, are covered by

      Rule 803(8)(C).” Id. The district court did not abuse its discretion in allowing

      the NHTSA report.

6.    Experts may rely on facts that are otherwise inadmissible if of a type

      reasonably relied upon by experts in the particular field. FED. R. EVID. 703;

      Marcel v. Placid Oil Co., 11 F.3d 563, 567 n.6 (5th Cir. 1994). Trial courts

      “should defer to the expert’s opinion of what data they find reasonably reliable.”

      Peteet v. Dow Chemical Co., 868 F.2d 1428, 1432 (5th Cir. 1989). Appellee’s

      expert, Robert Rucoba, testified that he both consults and relies on statistics from

      the federal government. The district court did not abuse its discretion in

      allowing Appellee’s expert to testify on the basis of this statistical evidence.

Affirmed.



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