                                                              F I L E D
                                                        United States Court of Appeals
                                                                Tenth Circuit
             UNITED STATES COURT OF APPEALS                    DEC 30 2003

                             TENTH CIRCUIT                 PATRICK FISHER
                                                                     Clerk


AFA TUATO; NIA TUATO,
individually, and as parents, next
friends, and personal representatives
of the Estate of Neval Abe Tuato;
KENRICK AMITUANAI, JR., an
adult child of the deceased Kenrick
Amituanai; CAROLINE LE’ELE,
individually, next friend, and personal
representative of and as Guardian Ad
Litem of Tuiaana (“Tre”) Le’ele, III,
the minor child of the deceased
Tuiaana “Scott” Le’ele,

      Plaintiffs,

      and                                   No. 02-2007 & 02-2021
                                          (D.C. No. CV-00-269-KBM)
LUPE AMITUANAI, individually,                    (New Mexico)
next friend, and personal
representative of and as Guardian Ad
Litem of Maau Lene Amituanai, a
minor child of the deceased Kenrick
Amituanai,

      Plaintiff-Appellant,

v.

WILLIAM R. BROWN; YELLOW
FREIGHT SYSTEM, INC., a
corporation; DOES 1-10, inclusive,

      Defendants-Appellees.
                        ORDER AND JUDGMENT *


Before SEYMOUR, HENRY and McCONNELL, Circuit Judges.


      Mr. Neval Ape Tuato, Mr. Tuiaana “Scott” Le’ele, and Mr. Kenrick

Amituanai were killed in a traffic collision. Their representatives 1 brought a

wrongful death suit against the driver of the other vehicle involved in the

collision and now appeal a variety of the district court’s pretrial rulings against

them. For the reasons articulated below, we reverse and remand for retrial.

      Decedents were traveling in a pickup truck on an interstate highway in Utah

when the driver of the pickup lost control of the vehicle and it skidded across the

median into oncoming traffic. A semi-truck and trailer collided with the pickup

and all three people in the pickup died. Plaintiffs conceded the contributory

negligence of the pickup driver throughout the proceedings, but it was unclear

which of the decedents was driving.

      Plaintiffs raise a number of issues on appeal but we need address only two:

whether the district court properly applied Utah law and whether the court failed


      *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
      1
        Plaintiffs/Appellants are the surviving family members, representatives of
the estates, or guardians ad litem to the surviving children of Mr. Tuato, Mr.
Le’ele and Mr. Amituani.
to adequately perform its gatekeeping function under Daubert v. Merrell Dow

Pharmaceuticals, Inc., 509 U.S. 579 (1993). The remaining issues might not arise

in a new trial.

       First, Plaintiffs contend the district court erred in applying Utah law rather

than the law of New Mexico. In support of their argument, Plaintiffs rely heavily

on State Farm Mut. Ins. Co. v. Conyers, 784 P.2d 986 (N.M. 1989). Conyers,

however, is inapposite to a determination of choice-of-law questions in tort

because it analyzed choice-of-law in the context of an insurance contract.

Plaintiffs’ supplemental authority, State Farm Mutual Automobile Insurance Co.

v. Ballard, 54 P.3d 537 (N.M. 2002), is similarly unavailing. In Ballard, the New

Mexico Supreme Court declined to apply lex loci contractus in interpreting a step-

down provision in an automobile liability insurance policy because the provision

was offensive to New Mexico public policy. Id. at 542. The court did recognize,

however, that New Mexico law applied to the tort liability in the case because the

accident occurred in New Mexico, and “[t]he rights and liabilities of persons

injured in automobile accidents are determined under the laws of the state where

the accident happened.” Id. at 539 (quoting State Farm Auto. Ins. Co. v. Ovitz,

873 P.2d 979, 981 (N.M. 1994)).

       Ballard thus confirms the strong presumption that New Mexico courts

apply lex loci in tort cases. See Torres v. State, 894 P.2d 386, 390 (N.M. 1995)


                                          -3-
(holding New Mexico courts generally apply tort law of state where wrong

occurred unless doing so would violate public policy); Estate of Gilmore v.

Gilmore, 946 P.2d 1130, 1135-36 (N.M. Ct. App. 1997) (finding strong

presumption in favor of applying lex loci in tort cases); Purple Onion Foods, Inc.

v. Blue Moose of Boulder, Inc., 45 F. Supp. 2d 1255, 1262 (D.N.M. 1999) (noting

New Mexico generally follows lex loci doctrine in tort cases).

      The New Mexico Supreme Court has acknowledged the presumption of lex

loci in tort is “not utilized, however, if such an application would violate New

Mexico public policy.” Torres, 894 P.2d at 390. Plaintiffs have failed to

overcome this strong presumption because they offer no compelling policy

considerations that would persuade a New Mexico court to apply New Mexico law

rather than Utah law in a case where the decedents were residents of California

and the accident occurred in Utah. The only legally significant connection the

state of New Mexico has to this case is that it was the domicile of the semi-truck

driver. We see no reason why New Mexico has a compelling policy interest in

providing a specific theory of recovery (comparative rather than contributory

negligence) to California plaintiffs who suffered injury in Utah. 2


      2
        Plaintiffs filed a motion requesting that we certify to the New Mexico
Supreme Court the question of whether a New Mexico court would use Utah law
under the lex loci doctrine or would apply New Mexico law. See N.M. R. App. P.
12-607 (“The Supreme Court may answer by formal written opinion questions of
                                                                       (continued...)

                                         -4-
      The second issue we address concerns the testimony by an expert witness

for the defense, Mr. Brian Charles. Under Daubert and Kumho Tire Co., Ltd. v.

Carmichael, 526 U.S. 137 (1999), the district court must perform a gatekeeping

function to ensure expert testimony offered under Federal Rule of Evidence 702 is

“not only relevant, but reliable.” Daubert, 509 U.S. at 589. The purpose of

Daubert gatekeeping is “to undertake whatever inquiry is necessary to ‘make

certain that an expert, whether basing testimony upon 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.’” Smith v.

Ingersoll-Rand Co., 214 F.3d 1235, 1243 (10th Cir. 2000) (quoting Kumho Tire,

526 U.S. at 152).

      We recently articulated the standard of review we apply to Daubert

gatekeeping cases. See Dodge v. Cotter Corp., 328 F.3d 1212, 1223 (10th Cir.),

cert. denied, 124 S. Ct. 533 (2003). We review de novo whether the district court

used the appropriate legal test when admitting expert testimony. Goebel v.

Denver & Rio Grande W. R.R. Co., 215 F.3d 1083, 1087 (10th Cir. 2000)


      2
       (...continued)
law certified to it by a court of the United States . . . if the answer may be
determinative of an issue in pending litigation in the certifying court and the
question is one for which answer is not provided by a controlling . . . appellate
opinion of the New Mexico Supreme Court . . . .”). Because controlling opinions
of the New Mexico Supreme Court provide the choice-of-the-law rules for this
case, we deny the motion to certify.

                                          -5-
(“Goebel I”) (remanding to district court, in part, for specific findings that court

performed initial Daubert gatekeeping function), aff’d on other grounds on reh’g,

Goebel v. Denver & Rio Grande W. R.R. Co., 346 F.3d 987 (10th Cir. 2003)

(affirming district court’s findings regarding substantive reliability of expert’s

conclusions without addressing court’s gatekeeping function). Although the

district court has discretion in how it conducts the gatekeeper function, it may not

abrogate its gatekeeping function altogether. See id. (citing Kumho Tire, 526 U.S.

at 158-59 (Scalia, J., concurring)). If the district court applied the proper

standard and acted as a gatekeeper at the outset of its inquiry, we then review for

abuse of discretion whether the court applied the standard correctly in

determining the admissibility of the testimony. General Elec. Co. v. Joiner, 522

U.S. 136, 138-39 (1997).

      We conclude the district court failed to perform its gatekeeping function

properly because it conducted an insufficient Daubert hearing and failed to make

findings necessary for our review of the Daubert issue raised by plaintiffs. To

demonstrate the reliability and admissibility of Mr. Charles’ testimony on

accident reconstruction and biomechanics, the defense offered Mr. Charles’

curriculum vitae and two expert reports he had previously written. 3 Mr. Charles


      3
         Biomechanics is “the study of the action of external and internal forces on
the living body, especially on the skeletal system.” Random House Unabridged
                                                                       (continued...)

                                          -6-
was not present at the hearing, and no testimony appears in the record.

      At the Daubert hearing, plaintiffs objected to Mr. Charles’ qualifications

and proposed testimony with regard to biomechanics. Rec., vol. II at 65-78. 4 As

plaintiffs pointed out to the district court, Mr. Charles admitted he was not a

biomechanics expert and the words “occupant dynamics” do not appear anywhere

on his curriculum vitae. Tr. Trans. at 133-34.

      The court overruled plaintiffs’ objections because it found they were

disputing the credibility of Mr. Charles’ accident report and the weight of the

evidence, matters which do not bear on the initial admissibility of the expert’s

      3
        (...continued)
Dictionary 210 (2d ed. 1993). Biomechanics is distinct from accident
reconstruction, which Mr. Charles defined as “a combination of science and art
that relates to determining how a collision occurred and then looking at the
factors leading up to the collision, in terms of occupant and vehicle behavior
preceding the crash.” Tr. Trans. at 51. We have allowed accident reconstruction
experts to testify to facts from which they claim to be able to give an accurate
picture of the sequence of events immediately preceding an accident. See Brandt
v. French, 638 F.2d 209, 211 (10th Cir. 1981). These facts include: “vehicle
mass; direction of skid marks; dimensions of vehicles involved; dents, breaks and
paint transfers of vehicles; road surface textures; and physics principles of
mechanics such as inertia, velocity, coefficients of friction, and operating
characteristics of vehicles.” Id.
      4
        At the Daubert hearing, plaintiffs expressed that they had no objection to
Mr. Charles’ qualifications with respect to accident reconstruction. Rec., vol. II
at 65-68. At trial, however, plaintiffs did object to Mr. Charles being recognized
as an expert on accident reconstruction. Tr. Trans. at 65-66. For purposes of this
appeal, the inconsistency is irrelevant because even if the court received no
objection at the Daubert hearing regarding accident reconstruction, it nevertheless
erred by failing to conduct a sufficient gatekeeping hearing regarding
biomechanics.

                                         -7-
testimony under Daubert. The court ruled Mr. Charles had sufficient information,

knowledge and experience to testify as an expert in accident reconstruction and

biomechanics. Mr. Charles was thus permitted to offer “expert” opinions on the

identity of the driver and on the lateral movement inside the car.

      In Dodge, we explained that the district court must make detailed findings

on the record to fulfill its gatekeeping responsibility under Daubert:

      A natural requirement of the gatekeeper function is the creation of a
      sufficiently developed record in order to allow a determination of whether
      the district court properly applied the relevant law. In [United States v.
      Velarde, 214 F.3d 1204, 1209 (10th Cir. 2000)], we observed that Kumho
      and Daubert make it clear that the [district] court must, on the record, make
      some kind of reliability determination. Thus, we held in [Goebel I] that
      when faced with a party’s objection, a district court must adequately
      demonstrate by specific findings on the record that it has performed its duty
      as gatekeeper. Without specific findings or discussion on the record, it is
      impossible on appeal to determine whether the district court carefully and
      meticulously reviewed the proffered scientific evidence or simply made an
      off-the-cuff decision to admit the expert testimony. In the absence of such
      findings, we must conclude that the court abused its discretion in admitting
      such testimony.

Dodge, 328 F.3d at 1223 (citations and quotations omitted) (first and second

emphases in original). In this case, as in Dodge, “the court did not make adequate

findings on the record to assure that the expert testimony offered was both

relevant and reliable, and that the particular opinions were based on valid

reasoning and reliable methodology.” Id. at 1225-26.

      Based on the record before us, we conclude the district court failed to

conduct a sufficient Daubert hearing. Rather than hear testimony and make

                                         -8-
findings on the record regarding the disputed matters, the court simply accepted

Mr. Charles as an expert and allowed him to testify. Because the court abrogated

its Daubert gatekeeping duty, we reverse and remand for a new trial.


                                      ENTERED FOR THE COURT

                                      Stephanie K. Seymour
                                      Circuit Judge




                                        -9-
