                           RECOMMENDED FOR FULL-TEXT PUBLICATION
                               Pursuant to Sixth Circuit I.O.P. 32.1(b)
                                      File Name: 14a0164p.06

                    UNITED STATES COURT OF APPEALS
                                   FOR THE SIXTH CIRCUIT
                                     _________________


 MARK D. LEE,                                            ┐
                                  Plaintiff-Appellant,   │
                                                         │
                                                         │       No. 13-3597
        v.                                               │
                                                          >
                                                         │
 SMITH & WESSON CORPORATION,                             │
                          Defendant-Appellee.            │
                                                         ┘
                         Appeal from the United States District Court
                        for the Northern District of Ohio at Cleveland.
                      No. 1:11-cv-01940—Dan A. Polster, District Judge.
                               Decided and Filed: July 29, 2014

                     Before: KEITH, SILER, and ROGERS, Circuit Judges.

                                      _________________

                                          COUNSEL

ON BRIEF: Brittany L. Lee, New Orleans, Louisiana, for Appellant. Clem C. Trischler,
PIETRAGALLO GORDON ALFANO BOSICK & RASPANTI, LLP, Pittsburgh, Pennsylvania,
for Appellee.

       ROGERS, J., delivered the opinion of the court, in which SILER, J., joined. KEITH, J.
(pp. 8–10), delivered a separate dissenting opinion.

                                      _________________

                                           OPINION

                                      _________________

       ROGERS, Circuit Judge. Plaintiff Mark Lee was injured while shooting a revolver made
by defendant Smith & Wesson Corp. In this product liability suit alleging a defect in the firearm,
the only expert evidence regarding how a defect in the firearm could have caused the injury was
excluded because the expert’s theory was not consistent with aspects of plaintiff’s own memory



                                                1
No. 13-3597               Lee v. Smith & Wesson Corp.                          Page 2

of what happened. The district court accordingly found the evidence inadmissible. Reserving
the right to challenge that evidentiary decision, plaintiffs Mark and Cynthia Lee stipulated to
dismissal of their suit and Mark Lee now appeals. Because the cause of Lee’s injury is the fact at
issue in this product-liability case, and notwithstanding that aspects of Lee’s memory contradict
his own expert’s theory, the expert testimony was not properly excluded. The judgment must
therefore be reversed and the case remanded for further proceedings.

       In November 2006, plaintiff Lee was injured in an accident while target shooting with his
460XVR revolver, which was designed, manufactured, and distributed by defendant Smith &
Wesson. After successfully firing the gun twice, Lee took a third shot, and the gun discharged
improperly, seriously injuring Lee’s right eye, face, and nose. According to plaintiff, the gun
cylinder swung open and caused the blast from the shot to knock off Lee’s safety glasses and
damage his right eye, leading to loss of vision and significant eye pain.

       Lee and his wife, Cynthia Lee, sued Smith & Wesson in Ohio state court, under the Ohio
Product Liability Act, alleging that he sustained permanent injuries from the shooting accident.
The Lees alternatively claimed that the revolver was defective in manufacture, in design, in
lacking adequate warnings, and in not conforming to representations made by Smith & Wesson.
Smith & Wesson claimed that Lee’s injuries were caused by recoil. Smith & Wesson removed
the suit to the federal court below based on diversity jurisdiction.

       In support of his claims, Lee sought to introduce the expert testimony of mechanical
engineer Roy Ruel. After examining Lee’s revolver and reviewing all relevant material, Ruel
concluded that Lee’s accident was the result of the revolver’s firing without its cylinder fully
closed and locked, a condition that caused hot high pressure gas to be expelled from the revolver
when fired, striking Lee in the face and causing his injuries. Ruel determined that the revolver
was defective in both design and manufacture because it could be cocked and fired with a pull of
the trigger without its cylinder closed and locked, and also because its ejector rod could become
loose, which would prevent its cylinder from closing and locking due to mechanical interference.
Ruel also concluded that Smith & Wesson failed to provide adequate warnings about this
condition. Ruel explained:
No. 13-3597              Lee v. Smith & Wesson Corp.                            Page 3

               When Mr. Lee attempted to fire his gun for the third shot, the cylinder
       failed to fully close and the gun would not fire. Not understanding the problem
       and as the cylinder appeared to be closed, Mr. Lee pushed on the thumb latch and
       in so doing was able to cock and fire the gun with the result experienced.
              The fact that the . . . gun’s cylinder was not closed and locked was
       evidenced by its cylinder falling open after Mr. Lee’s accident. That chamber
       pressure exceeded design was evidenced by the spent case being difficult to
       remove and had to be pried out after Mr. Lee’s accident.
               When the incident S&W 460 was examined by the author on March 11,
       2011 the author determined Mr. Lee’s S&W 460 revolver could be cocked ready
       to fire by a pull of the trigger without its cylinder being fully closed. Thus, as
       noted above, although Mr. Lee’s S&W 460 cylinder was not fully closed or
       locked it could still be fired by a pull of the trigger.
               In addition the author determined that Mr. Lee’s S&W 460 revolver’s
       ejector rod although screwed in place was not secure and could easily be loosened
       by fingers alone. . . . [The ejector rod had become loose on Lee’s revolve prior to
       the accident.]
              When the S&W 460’s ejector rod loosened, it initially caused the cylinder
       and yoke to bind making closing of the cylinder difficult and then prevented it
       from fully closing and locking. This is what occurred and was the cause of Mr.
       Lee’s accident.

R. 50-7, at 3–4, PageID # 1353–54.

       Smith & Wesson moved to exclude Ruel’s expert testimony because, among other
reasons, Ruel’s testimony failed to satisfy the Federal Rule of Evidence 702’s relevancy
requirement because of inconsistencies between Ruel’s reconstruction of the incident and Lee’s
testimony. The district court granted Smith & Wesson’s motion in limine on the grounds that
Ruel’s testimony failed to satisfy the relevancy requirement set out in Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579 (1993), and its progeny, codified in Rule 702 of the Federal
Rules of Evidence. The district court based its opinion on the following alleged inconsistencies
between Lee’s deposition testimony and Ruel’s expert opinion: (1) Lee testified that he had no
difficulty firing the gun the third time, whereas Ruel stated that the gun did not immediately fire
because the cylinder failed to close fully; (2) Lee testified that the cylinder was closed when he
fired the gun, whereas Ruel stated that it was open but appeared to be closed; and (3) Lee’s
demonstration of his grip on the gun showed that he did not touch the thumb latch, whereas Ruel
stated that Lee pushed on the thumb latch. Lee testified that he was able to close the cylinder
No. 13-3597               Lee v. Smith & Wesson Corp.                            Page 4

“when [he] rechambered the third round,” that it opened and closed normally, that he noticed
nothing different when loading the third round, and that the gun fired just as it had every other
time, but that when he shot he had the sensation that “somebody hit me with a sledgehammer in
the face.” When he fired the gun, Lee testified, “it didn’t sound right, something was different,”
and he saw a “bright flash.” Following the grant of the motion in limine, Lee agreed to a
stipulated dismissal, preserving his right to appeal the district court’s ruling. The court granted
the motion and dismissed the case.

       Ruel’s expert testimony should have been admitted.              Ruel had the appropriate
qualifications, he used reliable methods, and his opinion was based on physical evidence from
the accident. Ruel’s theory was based on the facts conveyed by the physical evidence (the gun),
and Ruel used reliable scientific methods—engineering skills—in rendering his opinion. In
preparing his report, Ruel reviewed the revolver itself, numerous reports and witness accounts of
the accident, Lee’s medical reports, and photos of the revolver. After examining the gun, Ruel
concluded that it “could be cocked ready to fire by a pull of the trigger without its cylinder being
fully closed.” He also determined that the revolver’s ejector rod “although screwed in place was
not secure and could easily be loosened by fingers alone,” and that the “ejector rod loosened,
[which] initially caused the cylinder and yoke to bind making closing of the cylinder difficult
and then prevented it from fully closing and locking. This is what occurred and was the cause of
Mr. Lee’s accident.” Ruel concluded that “Lee’s accident was the result of his revolver firing
without its cylinder fully closed and locked.”

       “The [Rule 702] inquiry is a flexible one . . . [and its focus] must be solely on principles
and methodology, not on the conclusions that they generate.” Daubert, 509 U.S. at 595. The
district court correctly observed that Lee’s testimony was that he closed the cylinder, locked it
into place, cocked the hammer, pulled the trigger, and fired; by contrast, Ruel’s opinion was that
the cylinder was open when the gun was fired. Although Ruel’s expert theory contradicted Lee’s
testimony in this way, “[t]he rule in Ohio, as well as in federal practice, is that a party is not
precluded from proving his case by any relevant evidence, even though that evidence may
contradict the testimony of a witness previously called by him.” Dickerson v. Shepard Warner
Elevator Co., 287 F.2d 255, 260 (6th Cir. 1961). Ruel planned to opine that the gun was
No. 13-3597               Lee v. Smith & Wesson Corp.                           Page 5

defective in design and manufacture because it could be cocked and fired with a pull of the
trigger while the cylinder was not closed and locked; that its ejector rod could become loose,
preventing its cylinder from closing and locking; and that Smith & Wesson failed to provide
adequate warning that the gun could be fired without the cylinder closed and locked and of the
hazard of hot gases being ejected by the gun when it was fired without the cylinder closed and
locked. If Lee was mistaken about whether he fully closed the cylinder, this testimony would be
highly relevant to determining whether the gun was defective.

       In light of this possibility, a jury presented with no believable alternative explanation
could believe that Lee’s testimony was wrong. Lee testified that he closed the chamber and fired
the gun, without incident. However, a reasonable fact finder could conclude that Lee thought he
had closed the chamber but in fact did not, and instead overlooked the opening, which Ruel
suggests was the case in Lee’s accident. Witness Tom Temple, Lee’s friend, to whom Lee
handed the gun after the misfire, testified that the cylinder was open at the time Lee handed it to
him. Another witness confirmed the chamber was open when Lee put the gun down. This
evidence supports Ruel’s theory and contradicts Lee’s testimony. In short, it is not a foregone
conclusion that the jury would agree with Lee that he fully closed the chamber and was able to
cock the gun without difficulty before firing it.

       In this situation, the expert’s evidence should have been admitted. This conclusion is
directly supported by our decision in Greenwell v. Boatwright, 184 F.3d 492, 497–98 (6th Cir.
1999). That was a motor vehicle collision case in which plaintiff’s theory relied on “fish-tailing”
by defendant’s truck before the collision, whereas defendant’s accident-reconstruction expert’s
theory was that the truck was not “fish-tailing” before the collision. There was eyewitness
evidence of fish-tailing, but the expert’s testimony was based on physical evidence. Applying a
Daubert analysis, we upheld the admission of the expert testimony, reasoning that “[the
difference between the expert’s testimony and the eyewitnesses’ testimony goes to the
conclusion that each witness reached as to the cause of the accident” and that “[e]xpert testimony
is not inadmissible simply because it contradicts eyewitness testimony.” Id. at 497. We relied
on the fact that the party opposing the expert testimony “d[id] not challenge the factual basis of
No. 13-3597                Lee v. Smith & Wesson Corp.                              Page 6

the expert’s testimony—the physical evidence.” Id. Similarly in this case, Smith & Wesson did
not challenge the factual underpinnings of Ruel’s testimony—the physical evidence.

        It is true that expert testimony should be excluded if it relies on facts that no jury could
reject, or relies on the rejection of facts that any jury would be required to accept. Thus we
qualified our holding in Greenwell by explaining that “[e]xpert testimony, however, is
inadmissible when the facts upon which the expert bases his testimony contradict the evidence.”
Id. at 497. We explained that, for parties opposing the expert testimony “to succeed on this
issue, they would have had to present facts that plainly contradict the physical evidence upon
which the expert based his theory of the accident.” Id. at 498. The witness testimony in this case
did not do so. For the reasons explained above, a jury relying on the expert testimony could
reject parts of Lee’s testimony that aspects of the expert’s testimony imply were mistaken.

        Lee’s case is thus different from cases in which we have properly rejected expert
testimony as inconsistent with the plain facts. For instance, in United States v. LeBlanc, 45 F.
App’x 393, 400–01 (6th Cir. 2002), we upheld the exclusion of expert testimony regarding
coercive or suggestive interviewing techniques because the defendant made no foundational
showing to establish that improper interview techniques were used to interview a child sexual
abuse victim. We noted that, “[a]t no time during the Daubert hearing did [the expert] point to a
single instance in which [the child] was supposedly subjected to allegedly coercive or suggestive
questioning techniques.”      Id.   Therefore, “without any showing whatsoever that improper
techniques were used with this witness, [the expert’s] testimony would have presented the jury
with an abstract theory having the potential to presumptively malign the testimony of [the child]
as a product of coercion in the absence of any evidence that such was the case.” Id. at 401. By
contrast, in this case it is clear that Lee shot the gun, that an explosion resulted, and that he either
did or did not fully close the cylinder before shooting. In Mohney v. USA Hockey, Inc., 138 F.
App’x 804, 809 (6th Cir. 2005), we upheld the exclusion of expert testimony in part because the
expert used estimates and assumptions rather than actual data in the mathematical equations used
to support a theory of how a face-masked ice hockey player was injured by crashing into the
boards. There is no such use of questionable data in Ruel’s physical inspection of the revolver.
No. 13-3597              Lee v. Smith & Wesson Corp.                            Page 7

       Lee’s memory and Ruel’s deductions both clearly reject Smith & Wesson’s argument that
the injury was caused by heavy recoil. Therefore, the central factual issue—the cause of Lee’s
injury—was still in dispute, and the mismatch between Lee’s and Ruel’s theories of whether the
cylinder was fully closed should not have precluded the admissibility of Ruel’s expert opinion.
Even under the deferential abuse-of-discretion standard, the district court’s exclusion of Ruel’s
testimony as inadmissible under Rule 702 was not proper.

       The party advocating exclusion in Greenwell also made the distinct argument that that the
expert’s testimony was not admissible because it contradicted judicial admissions made by the
other party. 184 F.3d at 498. We do not understand Smith & Wesson to be making this
alternative argument. Lee’s deposition testimony, in any event, does not constitute a judicial
admission. In Greenwell, we rejected the argument because the statements in question were
either opinions, rather than facts, or ambiguous and unclear. Id. Moreover, the cases cited in
Greenwell for the exclusion of evidence contrary to judicial admissions are cases in which the
admission was in the pleadings or in the opening argument of counsel.            See Ferguson v.
Neighborhood Hous. Serv., 780 F.2d 549, 550–51 (6th Cir. 1986) (admission in answer
pleading); MacDonald v. General Motors Corp., 110 F.3d 337, 339–40 (6th Cir. 1997)
(admission in opening statement by counsel). The purpose of the doctrine is to promote the
expedition of trials by allowing parties to rely upon lawyers’ admissions. “In order to qualify as
judicial admissions, an attorney’s statements must be deliberate, clear and unambiguous.” Id. at
340 (citing Oscanyan v. Arms Co., 103 U.S. 261, 263 (1880)).

       Here Smith & Wesson points to no judicial admission on the part of Lee in his
represented status as plaintiff. Instead, Lee as a witness testified as to what he remembered. A
tort plaintiff should be able to testify honestly to his memory of what happened and still have his
lawyer argue that on the evidence as a whole it is more probable than not that the memory was
faulty. If no jury could reasonably conclude that the plaintiff’s memory was faulty, dismissal
would be warranted. But that is not the case on this record.

       Accordingly, we reverse the district court’s judgment and remand for further
proceedings.
No. 13-3597                   Lee v. Smith & Wesson Corp.                                      Page 8

                                             _________________

                                                    DISSENT

                                             _________________

        DAMON J. KEITH, Circuit Judge, dissenting. I respectfully dissent. In my view, the
district court judge properly exercised his discretion in performing the required gatekeeping
duties under Rule 702 when he excluded Ruel’s testimony on the basis that it did not “fit” the
facts of this case and, therefore, did not satisfy the relevancy requirement of Rule 702. The
majority disregards this lack of fit, concluding that despite the vast differences between Ruel’s
“theory” and Plaintiff’s actual account of his actions, Ruel’s testimony is nevertheless relevant.
But Daubert does not require that a trial judge open the gate to all speculation, especially
speculation from an expert who openly admitted that he disregarded the Plaintiff’s account of the
events in reaching his hypothesis. Thus, for the following reasons, I would AFFIRM the
decision of the district court.

        This Court reviews the trial court’s decision to admit or exclude expert testimony for
abuse of discretion. See Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152 (1999). In order to
find an abuse of discretion, we must be “firmly convinced” that a mistake has been made.
United States v. Williams, 952 F.2d 1504, 1518 (6th Cir. 1991). Indeed, the district court has
broad discretion as a gatekeeper to determine the admissibility of scientific testimony. Pride v.
BIC Corp., 218 F.3d 566, 577-78 (6th Cir. 2000).

        Under Rule 702, a witness may offer specific, technical, scientific, or other specialized
testimony only if the following three requirements are met: (1) the witness is qualified by
knowledge, skill, experience, training, or education; (2) his testimony is relevant; and (3) his
testimony is reliable. In re Scrap Metal Antistrust Litig., 527 F.3d 517, 528B29 (6th Cir. 2008).
The “relevancy” prong of Rule 702 requires that an expert’s theory adequately “fit” the facts of
the case. See Daubert, 509 U.S. at 591. Expert testimony that does not fit the facts does not
relate to an issue in the case and, therefore, is not relevant.1 Id.


        1
          Although a relevance issue, the standard for fit is “higher than bare relevance.” In re Paoli R.R. Yard PCB
Litigation, 35 F.3d 717, 745 (3d Cir. 1994). In short, under Daubert and its progeny, a party proffering expert
testimony must show by a “preponderance of proof” that the expert whose testimony is being offered is qualified
No. 13-3597                    Lee v. Smith & Wesson Corp.                                        Page 9

         The district court judge found that Ruel’s testimony did not “fit” the facts of the case:

         Lee testified he had no difficulty whatsoever firing the gun a third time. He even
         denied what Ruel speculates he did: Try, but fail, to pull the trigger. In fact, Lee
         said everything was exactly the same as when he fired the first two shots. Lee also
         testified, contrary to Ruel=s theory, that the cylinder was closed when he fired the
         third round. In addition, Lee=s demonstration, as depicted in a photograph
         included in Defendant=s brief, makes clear that he never touched he thumb piece
         during the firing sequence, as Ruel speculates he did.

(internal citations omitted). R. 52, at 2, Memorandum of Opinion.

         I agree that this was the right conclusion. In conducting his gatekeeping function, the
judge may exclude testimony which he does not believe is “sufficiently tied to the facts of the
case that it will aid the jury in resolving a factual dispute.” LeBlanc, 45 F. App’x at 400 (quoting
United States v. Downing, 753 F.2d 1224, 1242 (3d Cir. 1985)). Several cases have held that a
judge is well within her discretion to exclude potential testimony which she believes does not fit
the facts of the case and is contradicted by the available testimony. See, e.g., Mohney v. USA
Hockey, Inc., 138 F. App’x 804, 809 (6th Cir. 2005); Pride, 218 F.3d at 275;2 Fuesting v.
Zimmer, Inc., 421 F.3d 528, 535B36 (7th Cir. 2005), vacated in part on other grounds, 448 F.3d
936 (7th Cir. 2006); J.B. Hunt Transport, Inc. v. General Motors Corp., 243 F.3d 441, 444 (8th
Cir. 2001); Cipollone v. Yale Indus. Products, Inc., 202 F.3d 376, 379 (1st Cir. 2000); Bradley v.
Armstrong Rubber Co., 130 F.3d 168, 176-78 (5th Cir. 1997); Guillory v. Domtar Industries Inc.,
95 F.3d 1320, 1330 (5th Cir. 1996); Lava Trading, Inc. v. Hartford Fire Ins. Co., 03 CIV. 7037
(PKC), 2005 WL 4684238 * at 21 (S.D.N.Y. Apr. 11, 2005); Reali v. Mazda Motor of Am., Inc.,
106 F. Supp. 2d 75, 78 (D. Me. 2000); cf. Bogosian v. Mercedes-Benz of No. America, Inc.,
104 F.3d 472, 479 (1st Cir. 1997) (excluding as irrelevant expert testimony because in



and will testify to scientific knowledge that will assist the trier of fact in understanding and disposing of issues
relevant to the case. Pride v. BIC Corp., 218 F.3d 566, 578 (6th Cir. 2000); see also United States v. LeBlanc, 45 F.
App’x 393, 400 (6th Cir. 2002).
          2
            Pride is particularly instructive. That case concerned a mishap of a BIC lighter, which unexpectedly
exploded, causing the plaintiff’s death. One of the plaintiffs’ experts testified that “that the globe seal was
‘cockeyed’ when the lighter left the manufacturer, that the misaligned seal permitted a fuel leak that caused the
lighter to fail to extinguish, and that the failure to extinguish caused the conflagration that killed Mr. Pride.” Id. at
578. However, other testimony supported a theory that “that the globe seal was properly aligned when the lighter
was manufactured.” Id. at 574, 578. We held that, where the theory is “contradicted by the testimony of one of
Pride’s other experts and by laboratory tests,” the scientific testimony does not “‘fit’ the facts of the case,” and the
trial judge’s decision to exclude the testimony should be undisturbed. Id. at 577–78.
No. 13-3597                   Lee v. Smith & Wesson Corp.                                   Page 10

performing test the expert “did not, in any way, attempt to replicate the known facts surrounding
the injury-producing event”).

        Ruel’s theory posits that Lee was mistaken about whether he fully closed the gun’s
cylinder, which would ostensibly be relevant in determining whether the gun was defective.
Although certainly a possibility, the trial judge is not required to navigate the outer-most bounds
of speculation, especially where the facts of the case do not support the hypothesized condition.
Particularly probative is Ruel’s imputation that Lee deliberately manipulated the firearm—and in
a highly unusual manner—both of which are wholly unsupported by the record.3 This key
incongruity, in light of the extensive case law in support, convinces me that the trial judge did
not abuse his discretion in excluding the testimony under his “gatekeeping” duties. Indeed,
“[n]othing either in Daubert or the Federal Rules of Evidence requires a district court to admit
opinion evidence that is connected to the existing data only by the ipse dixit of the expert. A
court may conclude that there is simply too great an analytical gap between the data and the
opinion proffered.” General Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997). To find an abuse of
discretion where a judge refuses to accept such a great analytical gap, as was done here, runs the
risk of creating a one-size-fits-all standard of expert evidence that makes the relevancy
requirement a nullity. Ruel’s theory fit a “set” of facts but not the facts at bar. As such, I would
conclude that, on these grounds, the judge did not abuse his discretion in excluding the expert
testimony and affirm the decision of the district court.




        3
           In order to simultaneously a) hold the thumb piece rearward, b) cock the hammer, and c) pull the trigger,
Lee would have to make a truly unusual hand maneuver, which is controverted by the manner in which Lee stated
that he held the gun. See R. 46-9, Deposition Transcript of Mark Lee, Page ID #1036-37.
