                                                              FILED
                                                  United States Court of Appeals
                     UNITED STATES COURT OF APPEALS       Tenth Circuit

                            FOR THE TENTH CIRCUIT                         July 17, 2012

                                                                      Elisabeth A. Shumaker
                                                                          Clerk of Court
BANCFIRST, Limited Guardian of the
Estate of M.J.H., a minor, by and through
Wes Knight, Vice President and Trust
Officer,

             Plaintiff-Appellant,

v.                                                        No. 11-6179
                                                   (D.C. No. 5:09-CV-00076-L)
FORD MOTOR COMPANY, a Delaware                            (W.D. Okla.)
corporation,

             Defendant-Appellee.


                            ORDER AND JUDGMENT*


Before TYMKOVICH, BALDOCK, and GORSUCH, Circuit Judges.



      One of the things they teach in driver education classes is that if your car

begins to spin out you should turn the steering wheel in the direction of the skid.

This counter-intuitive reaction allows the wheels to regain traction and arrest the


*
  After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of this
appeal. See Fed. R. App. P. 34(a)(2); 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
slide. Everyone agrees that Brandon Moore could not possibly have avoided the sad

collision at issue at the center of this case unless he followed this maxim. But

Mr. Moore admits he didn’t and, as a result, he hit and injured a child, known as

“M.J.H.,” who darted on her bicycle through a stop sign and into Mr. Moore’s

oncoming truck.

      For its part, BancFirst (acting as M.J.H.’s guardian) sought in this lawsuit to

prove Mr. Moore did counter-steer. It did so in order to place responsibility for the

accident at the door step of Ford Motor Company and the allegedly defective brakes

it placed on Mr. Moore’s truck. As part of its suit against Ford, BancFirst offered

expert testimony from William Medcalf who opined that Mr. Moore did

counter-steer, and that if Ford had equipped the truck with a better brake system the

accident never would have happened. The district court, however, concluded that

Mr. Medcalf did not meet the standards for admissible expert testimony set forth in

Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993). And because BancFirst

lacked any other evidence suggesting Ford’s braking system was the cause of the

accident, the district court granted summary judgment for Ford, and it is all of this

BancFirst naturally now appeals.1



1
   This is the second time this case is before us on appeal. See BancFirst ex rel.
Estate of M.J.H. v. Ford Motor Co., 422 F. App’x. 663, 664-66 (10th Cir. 2011). In
the first appeal we expressly reserved the question whether Mr. Medcalf’s testimony
was admissible under Daubert in order to allow the district court to address it in the
first instance, as that court now has.


                                          -2-
       Expert testimony is only admissible, of course, if it is “the product of reliable

principles and methods” and “appl[ies] the principles and methods reliably to the

facts of the case.” United States v. Nacchio, 555 F.3d 1234, 1241 (10th Cir. 2009)

(en banc) (quoting Fed. R. Evid. 702)); see also Daubert, 509 U.S. at 589-90. It

belongs to the district court in the first instance to make this reliability determination,

and we review its conclusions only for abuse of discretion. Gen. Elec. Co. v. Joiner,

522 U.S. 136, 138-39 (1997). So it is that we will not reverse unless we can say the

district court “exceeded the bounds of permissible choice in the circumstances” at

hand. Nacchio, 555 F.3d at 1241.

       We cannot say so much in the circumstances at issue here. The trouble for

BancFirst is that the district court found “simply too great an analytical gap between

the data and the opinion proffered.” Joiner, 522 U.S. at 146. And our own review of

the opinion and facts leads us to the same conclusion. While Mr. Medcalf opined

that Mr. Moore counter-steered to the right into the skid, the data just isn’t there to

support that conclusion. Mr. Moore himself conceded that when he saw M.J.H. dart

into the intersection he didn’t counter-steer to the right but instead hit the brakes and

turned hard to the left, only to have the truck spin counterclockwise and causing its

right rear corner to hit the child. And one can easily understand why Mr. Moore

might have done just as he said he did: steering right into the skid would have

required Mr. Moore to turn the wheel toward the child, making an already




                                           -3-
counter-intuitive maneuver all the more so given his desperate wish to avoid hitting

her.

       Attempting to bridge the gap between his opinion and the data in the face of

Mr. Moore’s unhelpful admission, Mr. Medcalf points to police photographs showing

that the wheels of Mr. Moore’s truck were turned to the right after the accident. But,

as the district court noted, there is no indication when the wheels were turned to the

right, before or after the accident. Mr. Medcalf himself acknowledges, as well, that

there is no evidence in the record that might allow him to figure this out.

       Trying yet another path, Mr. Medcalf notes that driver education courses

usually teach new drivers to counter-steer out of a slide. But true as that may be,

there is no evidence in this case Mr. Moore was so taught, or that drivers tend to

follow this training in the heat of the moment when doing so requires them to turn,

seemingly paradoxically, toward a person they are seeking to avoid. See Nacchio,

555 F.3d at 1258 (expert relying on his own experience “must explain how that

experience leads to the conclusion reached . . . and how that experience is reliably

applied to the facts.”) (quotation omitted). A similar problem recurs with

Mr. Medcalf’s reference to a study about driver reaction times. Mr. Medcalf says

this study shows Mr. Moore theoretically had enough time to make the counter-steer.

But however that may be, it still doesn’t indicate that he did counter-steer, or that

drivers tend to do so even when it requires them to turn back in the direction of a

person with whom they are about to collide.


                                          -4-
      In light of the gap between opinion and data, we find ourselves in no position

to call the district court’s exclusion of Mr. Medcalf an abuse of discretion. “[A]n

expert’s scientific testimony must be based on scientific knowledge, which ‘implies a

grounding in the methods and procedures of science’ based on actual knowledge, not

‘subjective belief or unsupported speculation.’” Dodge v. Cotter Corp., 328 F.3d

1212, 1222 (10th Cir. 2003) (quoting Daubert, 509 U.S. at 590). In this case, the

district court concluded that speculation is all that exists to support Mr. Medcalf’s

belief that Mr. Moore attempted to counter-steer. We find ourselves unable to

disagree.

      Because we uphold Mr. Medcalf’s exclusion for lack of fit between facts and

theory on his assertion that Mr. Moore counter-steered, we have no reason to address

BancFirst’s alternative arguments for excluding his testimony. And because without

Mr. Medcalf’s testimony BancFirst lacked any other way to prove Ford was the cause

of the injuries M.J.H. sustained, the district court appropriately entered judgment in

favor of Ford. To be sure, BancFirst now argues that the district court should have

allowed it to present a new expert witness in Mr. Medcalf’s stead. But BancFirst

never asked the district court for leave to present a new expert witness, and the bank

does not even attempt to suggest (let alone explain how) the district court’s failure to

provide that chance on its own motion somehow amounted to plain error.




                                          -5-
See Richison v. Ernest Grp., Inc., 634 F.3d 1123, 1128 (10th Cir. 2011).

      Affirmed.

                                              Entered for the Court



                                              Neil M. Gorsuch
                                              Circuit Judge




                                        -6-
