                                        PUBLISH

                    UNITED STATES COURT OF APPEALS
Filed 8/5/96
                                 TENTH CIRCUIT



 SHANE DUFFEE, minor, by and
 through guardian and next friend,
 ROSE THORNTON,

               Plaintiff - Appellant,

       v.                                         Nos. 95-3055 and 95-3241

 MURRAY OHIO MANUFACTURING
 CO., WAL-MART STORES, INC.,
 and SHIMANO AMERICAN, INC.,

               Defendants - Appellees.


        APPEAL FROM THE UNITED STATES DISTRICT COURT
                 FOR THE DISTRICT OF KANSAS
                     (D. Ct. No. 94-CV-4022)


Mark W. Works, Topeka, Kansas, appearing for the Appellant.

Donald Patterson, Fisher, Patterson, Sayler & Smith, appearing for Appellees
Murray Ohio and Wal-Mart Stores.*

David E. Larson, Larson & Larson, Kansas City, Missouri (Randall W. Schroer
with him on the brief), appearing for Appellee Shimano American.*

*Appellees Murray Ohio, Wal-Mart Stores, and Shimano American filed a joint
brief.


Before TACHA, MCWILLIAMS, and BALDOCK, Circuit Judges.
TACHA, Circuit Judge.


      On February 21, 1992, Shane Duffee was struck by a car while riding his

bicycle. By and through his guardian and next of friend Rose Thornton, Duffee sued

Wal-Mart, Murray Ohio Manufacturing Company, and Shimano American, Inc.,

alleging warning, design, and manufacturing defects under negligence, strict liability,

and warranty theories. The district court granted summary judgment in favor of Wal-

Mart and Murray on all claims on February 8, 1995. The court granted summary

judgment in favor of Shimano on all claims on July 24, 1995. After careful review

of the record, we adopt the analysis of the district court’s February 8, 1995, and July

24, 1995, orders.

      In the February 8 order, the district court determined that testimony from

Duffee’s expert regarding the safety of the brakes on Duffee’s bike was inadmissible

under Daubert v. Merrell Dow Pharmaceuticals, Inc., 113 S. Ct. 2786 (1993). The

only issue that this court must reach is the question of which standard should be used

to review decisions to exclude expert testimony under Daubert that result in summary

judgment. Ordinarily we review the grant or denial of summary judgment de novo.

Wolf v. Prudential Ins. Co. of Am., 50 F.3d 793, 796 (10th Cir. 1995). Evidentiary

rulings, however, are generally reviewed for abuse of discretion. Hinds v. General

Motors Corp., 988 F.2d 1039, 1047 (10th Cir. 1993). The Third and Eleventh


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Circuits, while acknowledging that evidentiary rulings usually receive greater

deference, have nonetheless held that “when the district court’s exclusionary

evidentiary rulings with respect to scientific opinion testimony will result in a

summary or directed judgment, we will give them a ‘hard look’ (more stringent

review) to determine if a district court has abused its discretion in excluding

evidence as unreliable.” In re Paoli R.R. Yard PCB Litig., 35 F.3d 717, 749-750 (3d

Cir. 1994) (citation omitted); see Joiner v. General Elec. Co., 78 F.3d 524, 529 (11th

Cir. 1996) (applying “a particularly stringent standard of review to the trial judge’s

exclusion of expert testimony.”) The Seventh Circuit, on the other hand, has held that

the trial judge’s decision to exclude evidence under Daubert should be reviewed for

abuse of discretion, even when that decision results in summary judgment. Buckner

v. Sam’s Club, Inc., 75 F.3d 290, 292-93 (7th Cir. 1996); see Rosen v. Ciba-Geigy

Corp., 78 F.3d 316, 318 (7th Cir. 1996).

      Daubert requires district judges to act as gatekeepers to ensure that scientific

evidence is both relevant and reliable. Daubert, 113 S. Ct. at 2796-97. This entails

two inquiries: whether the reasoning and methodology underlying the testimony is

scientifically valid, and whether the reasoning and methodology can properly be

applied to the facts. Id. at 2796. Like the Supreme Court, we “are confident that

federal judges possess the capacity to undertake this review.” Id. Their decisions,

therefore, are properly reviewed under the traditional abuse of discretion standard.


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In this case, the district judge found that the testimony of the plaintiff’s expert was

not supported by appropriate validation, and therefore was inadmissible under

Daubert. After reviewing the record, we conclude that the district judge did not

abuse his discretion by excluding this testimony.

      We AFFIRM for substantially the reasons given by the district court and

ORDER both of the district court’s orders in this case to be published.




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