                                                                        FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                               December 15, 2010
                      UNITED STATES COURT OF APPEALS
                                                   Elisabeth A. Shumaker
                                                                     Clerk of Court
                                     TENTH CIRCUIT


 CHERYL EMILY GRAVES and DON
 GRAVES,

          Plaintiffs - Appellants,                Nos. 10-6011, 10-6094
 v.                                             (D.C. No. 5:08-CV-00035-F)
                                                       (W.D. Okla.)
 MAZDA MOTOR CORPORATION,

          Defendant - Appellee.


                              ORDER AND JUDGMENT *


Before KELLY, EBEL, and GORSUCH, Circuit Judges.


      In this products liability case, plaintiffs Cheryl and Don Graves ask us to

reverse the district court’s grant of summary judgment in favor of Mazda Motor

Corporation. This we cannot do. The only evidence the Graves presented to

establish liability came from their proffered expert. The district court, however,

excluded that expert on Daubert grounds, and its decision to do so, we conclude,

did not amount to an abuse of discretion. So it is we must affirm.


      *
         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) and 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order and judgment is not binding precedent except under the doctrines of law of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.
                                          I

      This case arises out of a trip Mrs. Graves took to Hattiesburg, Mississippi.

Upon arriving at the Hattiesburg airport, she picked up her rental car — a Mazda6

with an automatic transmission. At the end of her stay in Mississippi and while

en route to the airport to depart for home, Mrs. Graves got lost and pulled over at

a private home to ask for directions. When exiting the car, Mrs. Graves left the

engine running but thought she had placed the car’s shifter in “park.” As it turns

out, the gear shifter was in “reverse” and, when she stepped out, the car rolled

backwards, knocked her to the ground, and ran her over.

      Bringing this diversity lawsuit, Mrs. Graves and her husband sought

damages from Mazda for the injuries she suffered, alleging that the company’s

gear shifter was defectively designed. In support of their claim, the plaintiffs

offered expert testimony from Stephen Syson, a human factors engineer. The

district court, however, excluded Mr. Syson’s testimony as unreliable and then,

given the absence of any other probative evidence of liability and applying

Mississippi’s products liability law, granted summary judgment in favor of

Mazda. As the prevailing party, Mazda later sought to recoup its taxable costs

pursuant to 28 U.S.C. § 1920 and Fed. R. Civ. P. 54. Ultimately, the district

court awarded Mazda $8,737.98 — slightly over half of what the company had

sought. On appeal, the plaintiffs seek to undo both the district court’s summary

judgment decision and its cost award.

                                         -2-
                                           II

        We first consider the summary judgment question. In their own approach

to that question, the parties spend most of their time debating whether the district

court should have applied Oklahoma’s products liability law (as the plaintiffs

contend) or Mississippi’s (as the district court did and Mazda prefers). But the

only essential difference between the two laws is that the latter requires a

products liability plaintiff to proffer a feasible alternative design to the

purportedly defective one. Compare Kirkland v. General Motors Corp., 521 P.2d

1353, 1363 (Okla. 1974) (requiring proof that product had a “defect” and that the

defect made it “unreasonably dangerous” to the consumer), with Miss. Code Ann.

§ 11-1-63 (requiring proof of an “unreasonably dangerous” defect and a “feasible

design alternative that would have to a reasonable probability prevented the

harm”). And that single elemental difference doesn’t affect the outcome of this

case.

        That’s because, as the district court noted, the plaintiffs’ case founders on

an element common to both Oklahoma and Mississippi law — one requiring any

products liability plaintiff to identify an unreasonably dangerous design defect.

See Kirkland, 521 P.2d at 1363; Miss. Code Ann. § 11-1-63. To survive summary

judgment under either state’s law, then, Mr. and Mrs. Graves had to come forward

with evidence from which a reasonable fact-finder could have concluded that

Mazda’s gear shift design was defective and unreasonably dangerous. See Fed. R.

                                          -3-
Civ. P. 56. The only evidence Mr. and Mrs. Graves proffered on this score came

from Mr. Syson and, after the district court excluded that evidence, the plaintiffs

were left without any evidence to stave off summary judgment. Thus, this appeal

really hinges on the propriety of the district court’s exclusion of Mr. Syson.

      We review a district court’s decision to admit or exclude expert testimony

for abuse of discretion. See United States v. Charley, 189 F.3d 1251, 1266 (10th

Cir. 1999). Of necessity, this standard of review “implies [that] a degree of

discretion [is] invested ” in the district judge to issue a decision “based upon what

is fair in the circumstances and guided by the rules and principles of law.” Valley

Forge Ins. Co. v. Health Care Mgmt. Partners, Ltd., 616 F.3d 1086, 1096 (10th

Cir. 2010) (internal quotation omitted). Accordingly, we may reverse the district

court only if its discretionary decision fell beyond the “bounds of the rationally

available choices [before it] given the facts and the applicable law in the case at

hand. ” Id. (internal quotation omitted).

      The boundaries of the rationally available choices available to a district

court in this field are well marked. Federal Rule of Evidence 702 indicates that a

district court should allow an expert to testify if “(1) the testimony is based upon

sufficient facts or data, (2) the testimony is the product of reliable principles and

methods, and (3) the witness has applied the principles and methods reliably to

the facts of the case.” Fed. R. Evid. 702. In assessing whether an expert’s

opinion is reliable enough to be admitted, a district court may consider whether

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(1) the opinion at issue can be and has been tested, (2) the theory or technique has

been subjected to peer review and publication, (3) there is a known or potential

rate of error, and (4) the technique has general acceptance in the relevant

discipline. Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 593-94 (1993).

While these Daubert factors aren’t meant as a one-size-fits-all test to be applied

rotely to all experts, and while the district court enjoys much discretion in how it

goes about assessing the reliability of an expert’s proffered testimony, the central

objective of the district court in any Daubert inquiry is and must be to ensure that

any expert “employs in the courtroom the same level of intellectual rigor that

characterizes the practice of an expert in the relevant field.” Kumho Tire Co.,

Ltd. v. Carmichael, 526 U.S. 137, 141-42, 152 (1999). Thus, to discharge its

Daubert gatekeeping responsibility, the district court must take enough steps to

confirm that it has “assess[ed] the reasoning and methodology underlying the

expert’s opinion,” Milne v. USA Cycling, Inc., 575 F.3d 1120, 1134 (10th Cir.

2009) (quoting United States v. Rodriguez-Felix, 450 F.3d 1117, 1123 (10th Cir.

2006)), and “determine[d] whether it is scientifically valid and applicable.”

Goebel v. Denver and Rio Grande Western R.R. Co., 215 F.3d 1083, 1087 (10th

Cir. 2000).

      In ruling that the plaintiffs had failed to carry their burden of establishing

Mr. Syson’s reliability, the district court applied these principles in a sensible

way, and one with which we entirely agree. As the district court noted, Mr.

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Syson failed to provide any data or industry standard, or to conduct any testing, to

confirm his view that Mazda’s gear shift design was defective. Instead, Mr.

Syson’s proffered testimony merely described how the Mazda shifter works,

pointed out the multiple “detents” between “drive” and “park,” and noted that

each detent is larger than the diameter of the shift lever. From this, Mr. Syson

leaped directly to the conclusion that Mazda’s design fails to allow for “smooth”

shifting and so is defective and unreasonably dangerous. But without any

reference to data suggesting how “smoothly” an ordinary consumer would expect

a gear shift to move, without any confirming evidence indicating how Mazda’s

design might cause shifting troubles for ordinary drivers, without any reference to

how engineering standards might have counseled against Mazda’s gear shift

design, and without any other evidence suggesting its reliability, the district court

was right to exclude Mr. Syson’s testimony. Admittedly, as the plaintiffs point

out on appeal, Mr. Syson did provide a list of “safety systems analysis”

techniques that, he contended, Mazda should have used in assessing its design.

But even here, Mr. Syson failed to offer any evidence suggesting that Mazda

actually failed to use these techniques. And he failed to present any evidence

suggesting that these techniques, in any event, would have led Mazda to conclude

that it needed to pursue a different gear shift design.

      In the end, then, while the district court and we appreciate and recognize

Mr. Syson’s credentials and don’t doubt the value someone in his field can bring

                                          -6-
to defective design cases, the evidence he proffered in this case rests on no more

than his say so — and that isn’t good enough to require its admission. “Nothing

in either Daubert or the Federal Rules of Evidence requires a district court to

admit opinion evidence” based on only “the ipse dixit of the expert[,]” however

well qualified he may be. Kumho, 526 U.S. at 157; see also Milne, 575 F.3d at

1134 (upholding exclusion of expert whose “conclusions about the safety

precautions that should have been taken are . . . mere speculation” and explaining

that “‘[i]t is axiomatic that an expert, no matter how good his credentials is not

permitted to speculate.’”) (quoting Goebel, 215 F.3d at 1088).

      To this, the plaintiffs reply by pointing to two district court opinions from

outside this circuit. These decisions, the plaintiffs say, suggest that testimony

from human factor engineers like Mr. Syson should be allowed without requiring

any external evidence suggesting the reliability of their testimony. See St. Pierre

v. Maingot, No. 1-2281, 2003 WL 25689900 (E.D. La. Apr. 7, 2003)

(unpublished); Michaels v. Mr. Heater, Inc., 411 F. Supp. 2d 992 (W.D. Wis.

2006). It is difficult to tell, however, what the basis of the expert’s opinion was

in the unpublished St. Pierre case, and in Michaels the expert appears to have

referenced and relied on industry standards and methods, not just his own say so,

to support his proffered opinions. See Michaels, 411 F. Supp. 2d at 999. In this

way, Michaels illustrates that human factor engineering is a field in which theses

like Mr. Syson’s are susceptible to testing or can be based on industry standards

                                         -7-
and methods, a point made by other authorities as well. See, e.g., William D.

Bliss, Defective Product Design — Role of Human Factors, 18 Am. Jur. Proof of

Facts 2d 117, § 5 (noting that human factors engineers deal with “highly-specific,

data-related questions” such as: “How far from the seated operator can a control

switch be located and still be reached? How much seat adjustment must be

provided so that both the fifth percentile operator and the ninety-fifth percentile

operator can reach the operating controls?”).

      Besides, we are bound not by extra-circuit district court decisions but by

our own precedent. And that precedent is clear and unequivocal that the ipse dixit

of an expert, no matter how qualified he may be, is never enough to guarantee

him a ticket to admissibility. Not only did we so hold in Milne, 575 F.3d at 1134,

and Goebel, 215 F.3d at 1088, but we have so held for many years in many cases,

see e.g., Rodriguez-Felix, 450 F.3d at 1125-26 (expert report insufficient to allow

district court to “assess the reasoning and methodology underlying the expert’s

opinion,” and “casual mention of a few scientific studies” was not enough)

(internal quotation omitted); Black v. M & W Gear Co., 269 F.3d 1220, 1237-38

(10th Cir. 2001) (district court properly “excluded the evidence because [the

expert] had not based his conclusion on the results of tests or calculations specific

to [the plaintiff’s] accident”).




                                         -8-
      Given that Mr. Syson’s testimony was properly excluded and no other

evidence suggesting that Mazda’s design was defective, we affirm the district

court’s summary judgment disposition.

                                         III

      That leaves us only with the plaintiffs’ challenge to the district court’s cost

award to Mazda of $8,737.98 pursuant to 28 U.S.C. § 1920. The plaintiffs charge

that most of the depositions Mazda took, and the costs the company incurred in

doing so, weren’t necessary. But the district court found otherwise. And the

district court possesses “broad discretion” in awarding costs which we will not

disturb unless that court “(1) commits legal error, (2) relies on clearly erroneous

factual findings, or (3) where no rational basis exists in the evidence to support

its ruling.” In re Williams Sec. Litig.-WCG Subclass, 558 F.3d 1144, 1148 (10th

Cir. 2009).

      No such reversible error exists here. The depositions in question were of

individuals who spoke to Mrs. Graves’s injuries immediately after the accident

and the condition of the car before and after the accident. Ronnie Woullard, for

example, was the owner of the home where Mrs. Graves’s accident took place.

Not only did he observe and talk to Mrs. Graves, Mr. Woullard also drove the

Mazda6 back onto his driveway and thus could well have had relevant

information regarding how the car operated and the presence of any defect.

Similarly, the first five emergency responders were in a good position to observe

                                         -9-
the immediate scene of the accident and Mrs. Graves’s injuries. The two family

members deposed, Linda Bland and DeAnna Brekke, were with Mrs. Graves

forty-eight hours prior to the incident and spoke to her shortly afterward. As the

district court concluded, it was eminently reasonable for Mazda to think this

information necessary for trial, relevant both to the question of damages and

whether the car was defective.

      The plaintiffs’ complaint about the district court’s award of costs

associated with the copying of DVDs and CDs given to experts and counsel fails

for a similar reason. These items contained photographs of the scene, videos of

the vehicle inspection, and other investigatory documents obviously pertinent, as

the district court concluded, to the preparation for a trial. See Williams, 558 F.3d

at 1149 (noting that “the burden of justifying copy costs is not a high one”

(internal quotation omitted)). While the plaintiffs may be right that Mazda could

have avoided making copies for its experts and counsel by, for example,

uploading its digital files onto a centralized database, and while that method of

distributing information may some day become mandatory, our case law has not

yet prohibited prevailing parties from recovering costs incurred in employing

more traditional methods of copying and distributing material information. See

id. (“Nor do we think the fact documents are available in a central depository, as

Plaintiffs allege here, inexorably leads to the conclusion that copies made for an




                                        - 10 -
attorney’s use were not reasonably necessary to the litigation of the case”

(internal quotation omitted)).

      The judgment of the district court is affirmed.



                                       ENTERED FOR THE COURT



                                       Neil M. Gorsuch
                                       Circuit Judge




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