                                                                        F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                      UNITED STATES CO URT O F APPEALS
                                                                          May 1, 2007
                             FO R TH E TENTH CIRCUIT                 Elisabeth A. Shumaker
                                                                         Clerk of Court

    VICKI LYNN SM ITH, as M other and
    personal representative of
    the estate of James Thomas H oward
    IV ,                                                  No. 06-6151
                                                   (D.C. No. CIV-04-1271-HE)
              Plaintiff-Appellant,                        (W .D. Okla.)

     v.

    SEARS ROEBUCK AND CO., a New
    Y ork corporation; TH E
    CHAM BERLAIN GROUP INC., an
    Illinois corporation,

              Defendants-Appellees.



                              OR D ER AND JUDGM ENT *


Before HO LM ES and M cKA Y, Circuit Judges, BROR BY, Senior Circuit Judge.


          Plaintiff Vicki Lynn Smith appeals from the district court’s order excluding

the testimony of her expert witness under Rule 702 of the Federal Rules of

Evidence and Daubert v. M errell Dow Pharm., Inc., 509 U.S. 579 (1993), and for


*
       After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and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.
summary judgment in favor of defendants Sears Roebuck and Co. (Sears) and The

Chamberlin Group Inc. (Chamberlin). 1 She also assigns as error the court’s denial

of her motions to compel discovery. W e have jurisdiction under 28 U.S.C. § 1291

and affirm.

                                 BACKGROUND

      In April 2003, M s. Smith’s four-year-old son Tommy, was killed when he

was trapped under a garage door that was installed with a garage door opener

manufactured by Chamberlin and sold by Sears. At the time of the accident, the

opener had been in use for twenty-four years. By the time her lawsuit was filed

in October 2004, the garage door itself had been badly damaged and the opener

had been dismantled. At some unknown time, numerous component parts of the

opener were lost or misplaced, and could not be produced for inspection and

testing during discovery.



1
       Although M s. Smith claims that she is appealing from the grant of summary
judgment in favor of Sears and Chamberlin, she offers no argument in her
opening brief that the district court’s decision was error assuming that its
expert-w itness ruling was correct. Therefore, the issue is waived. State Farm
Fire & Cas. Co. v. M hoon, 31 F.3d 979, 984 n.7 (10th Cir. 1994). In her reply
brief, M s. Smith addresses the issue for the first time, however, the discussion
comes too late because “[i]t robs the appellee of the opportunity to demonstrate
that the record does not support an appellant’s factual assertions and to present an
analysis of the pertinent legal precedent that may compel a contrary result.”
Stump v. Gates, 211 F.3d 527, 533 (10th Cir. 2000). Regardless, we have
examined the authorities relied upon by the court and cited by M s. Smith in her
reply, and agree that without the testimony of an expert witness, she could not
prove her claims under Oklahoma law for products liability (defective design) or
negligence based on failure to warn.

                                        -2-
      To prove her claims for products liability and negligence, M s. Smith

identified Gene Litwin as an expert witness to testify that the garage door opener

was defectively designed and that this design defect caused the accident.

M r. Litwin also opined that the w arnings contained in the Owner’s M anual were

inadequate. Following discovery, Sears and Chamberlin moved to strike

M r. Litwin’s testimony, challenging the reliability and relevance of his testimony

and his qualifications as an expert witness. They also moved for summary

judgment.

                              EX PERT TESTIM ONY

      Rule 702 of the Federal Rules of Evidence codifies the Supreme Court’s

decision in Daubert and sets forth the standard that expert testimony must meet to

be admissible in evidence. As part of its gate keeping function, and in addition to

determining whether the proposed expert is qualified to offer an opinion, the trial

court must also determine whether “(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. Reliability under Daubert is determined by looking

at “w hether the reasoning or methodology underlying the testimony is

scientifically valid,” 509 U.S. at 592-93, and relevance is determined by “whether

that reasoning or methodology properly can be applied to the facts in issue.” Id.

at 593.

                                         -3-
       In determining the reliability of expert testimony, there are several

nonexclusive factors that the court may consider, including (1) whether the

expert’s theory or technique can be and has been tested, (2) whether the theory or

technique has been subjected to peer review and publication, (3) the known or

potential rate of error of the technique or theory, and (4) the general acceptance

of the theory or technique. Id. at 592-94. Daubert itself, however, recognizes

these factors are not definitive, and a trial court has broad discretion to consider

other factors in determining the reliability of the proffered expert testimony. Id.

at 594; see also Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152 (1999)

(concluding that “the trial judge must have considerable leeway in deciding in a

particular case how to go about determining whether particular expert testimony

is reliable”).

       The party sponsoring expert testimony

       need not prove that the expert is undisputably correct or that the
       expert’s theory is generally accepted in the scientific community.
       Instead, the [party] must show that the method employed by the
       expert in reaching the conclusion is scientifically sound and that the
       opinion is based on facts which sufficiently satisfy Rule 702’s
       reliability requirements.

Truck Ins. Exch. v. M agnetek, Inc., 360 F.3d 1206, 1210 (10th Cir. 2004) (internal

quotations and citations omitted).

       On appeal,

       we review de novo the question of whether the district court applied
       the proper standard and actually performed its gatekeeper role in the

                                          -4-
      first instance. W e then review the trial court’s actual application of
      the standard in deciding whether to admit or exclude an expert’s
      testimony for abuse of discretion. . . . The trial court’s broad
      discretion applies both in deciding how to assess an expert’s
      reliability, including what procedures to utilize in making that
      assessment, as well as in making the ultimate determination of
      reliability. . . . A court does not abuse its discretion unless its
      decision is arbitrary, capricious, whimsical or manifestly
      unreasonable, or unless we are convinced it made a clear error of
      judgment or exceeded the bounds of permissible choice in the
      circumstances.

Dodge v. Cotter Corp., 328 F.3d 1212, 1223 (10th Cir. 2003) (internal citation

and quotations omitted).

      M s. Smith asserts the district court misapplied Daubert and Rule 702 to the

undisputed facts. W e disagree. Specifically, M r. Litwin’s opinion was that the

garage door opener “was prone to failure because in ordinary use [the reverse

mechanism] would rarely be actuated and the mechanism would tend to get

inoperably stuck when not actuated frequently.” Aplt. App., Vol. II at 736. The

court found M r. Litwin’s opinion failed to meet the standards of reliability under

Daubert and Rule 702 because, among other things:

      ! He did no testing to substantiate his theory.

      ! His opinion ignored M s. Smith’s testimony that she had tested the

reverse mechanism of the garage door opener at least three to four times a year

from 1996 (when she moved into the home) through the date of the accident in

April 2003, thus eliminating lack of use as a cause of the failure.




                                         -5-
      ! He could not rule out any of the numerous alternative causes for the

accident, including the fact that mechanical devices do not last forever and are

subject to failure without warning, the motor in the garage door opener had a

weeping capacitor, the opener may have not been properly adjusted, the garage

door may not have been properly lubricated, and the old and worn motor may

have had insufficient torque to activate the reverse mechanism.

      This opinion testimony is inadmissible because it is “connected to the

existing data only by the ipse dixit of the expert.” Gen. Elec. v. Joiner, 522 U.S.

136, 146 (1997); see also Bitler v. A.O. Sm ith Corp., 400 F.3d 1227, 1238

(10th Cir. 2004) (holding that although an expert does not have to categorically

exclude each and every possible cause of an accident, “an inference to the best

explanation for the cause of an accident must eliminate other possible sources as

highly improbable, and must demonstrate that the cause identified is highly

probable”).

      In addition to challenging the reliability and relevance of M r. Litwin’s

expert testimony, Sears and Chamberlin also challenged his qualifications as an

expert witness. Even though the district court found M r. Litwin was qualified to

render expert testimony, M s. Smith contends the court unfairly described him as

having “many of the attributes of an ‘expert for hire’ rather than someone with

independent credentials in the field of engineering.” Aplt. A pp., Vol. III at 1413.

According to M s. Smith, this description “colored [the judge’s] remaining

                                          -6-
analysis and overall conclusion.” Aplt. Opening Br. at 8. Setting aside the fact

that this is not a legal argument, but simply a quarrel with the words used by the

judge in ruling in her favor, our review of the record convinces us this comment

was properly part of the court’s gatekeeper role, w hich requires it to “adequately

demonstrate by specific findings on the record that it has performed its duty as

gatekeeper.” Goebel v. Denver & Rio Grande W. R.R. Co., 215 F.3d 1083, 1088

(10th Cir. 2000).

      Next, M s. Smith argues the district court should have applied Oklahoma’s

evidentiary rules to determine the admissibility of M r. Litwin’s expert testimony.

Plainly, this is not the law, and she offers no support for this proposition other

than this is a “case involving Oklahoma law, the Oklahoma market place, and an

Oklahoman child.” Aplt. Opening Br. at 21. W e similarly reject her argument

that a court should be more liberal in allowing expert testimony in a case “w here

a child has lost his life.” Id. To the contrary, “[r]egardless of the specific factors

at issue, the purpose of the Daubert inquiry is always ‘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.’” Dodge, 328 F.3d at

1222-23 (quotation omitted). In fact, one could just as easily argue for

heightened scrutiny in a case such as this where a jury could be swayed by




                                          -7-
 emotion. Regardless, the underlying facts of a case do not call for an uneven

 application of Daubert or Rule 702.

       As to M r. Litwin’s expert testimony concerning the inadequacy of the

 warnings in the Owner’s M anual for the garage door opener, the district court

 found that this testimony was irrelevant under Daubert and Rule 702 because the

 reasoning and/or methodology used by M r. Litwin was not only unreliable, but

 irrelevant because it did not apply to the facts in the case. The reason why it did

 not apply to the facts in the case is because under Oklahoma products liability

 law, a plaintiff must establish, among other things, that “the failure to w arn

 caused the injury.” Daniel v. Ben E. Keith Co., 97 F.3d 1329, 1332 (10th Cir.

 1996). W here, as here, the undisputed evidence is that M s. Smith never read the

 Owner’s M anual, she cannot establish that the failure to warn caused the injury.

       Our review of the record convinces us that the district court properly

 performed its gatekeeper role and its decision to exclude M r. Litwin’s expert

 testimony as unreliable and irrelevant was not an abuse of discretion.

                              M OTION S TO CO M PEL

      M s. Smith also argues that the district court wrongly denied that portion of

her motions to compel that requested Sears and Chamberlin to “disclose lawsuits,

complaints or records of other similar incidents involving allegations of injury to

persons using the Chamberlin/Sears [garage door openers].” Aplt. Reply Br. at 23.

But as Sears and Chamberlin point out, M s. Smith never identifies the specific

                                           -8-
interrogatories or document requests she contends were improperly resolved by the

court.

         Our examination of the record reveals that M s. Smith’s Interrogatories Nos. 4

and 5, requested the information she seeks on appeal. Those interrogatories asked

Sears and Chamberlin:

         Interrogatory No. 4: Have you ever received notice of any accidents or
         injuries involving the Product or Similar Openers from the time it was
         originally manufactured and sold to the present time? If so, please
         describe each such injury or accident of which defendant has been
         notified.

         Interrogatory No. 5: Has a claim or lawsuit ever been filed against
         [you] wherein a person claimed that he (or a person he brought the
         law suit for) w as injured or killed as a result of using or coming into
         contact with the Product or any Similar Opener? If so, please list the
         name and address of each claimant and give a complete description of
         the claim or lawsuit. Also, please state the name and address of any
         person whom you know or you have reason to believe has sustained any injury while using

Aplt. A pp., Vol. I at 53.

         How ever, M s. Smith did not challenge either Sears’ or Chamberlin’s

responses to Interrogatories 4 or 5 in her motions to compel. Id. at 28-44, 143-61.

Therefore, she cannot raise this argument for the first time on appeal. See, e.g.,

O’Connor v. City & County of Denver, 894 F.2d 1210, 1214 (10th Cir. 1990).

         The judgment of the district court is AFFIRMED.

                                                      Entered for the Court


                                                      M onroe G. M cKay
                                                      Circuit Judge



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