                                                                 [DO NOT PUBLISH]

                   IN THE UNITED STATES COURT OF APPEALS

                               FOR THE ELEVENTH CIRCUIT           FILED
                                ________________________ U.S. COURT OF APPEALS
                                                                 ELEVENTH CIRCUIT
                                       No. 11-13007               JANUARY 31, 2012
                                   Non-Argument Calendar             JOHN LEY
                                 ________________________             CLERK


                          D.C. Docket No. 6:06-cv-01671-JA-DAB



AMY SHIRLEY OLIVER,
as Personal Representative of the Estate of
Anthony Carl Oliver, Sr., Deceased, for and on
behalf of the survivors of the Estate of Anthony
Carl Oliver, Sr.,

llllllllllllllllllllllllllllllllllllllllPlaintiff - Appellant,

versus

ORANGE COUNTY, FLORIDA,
a political subdivision of the State of Florida, et al.,

lllllllllllllllllllllllllllllllllllllllDefendants,

LORI FIORINO,
in the official capacity as Orlando Police
Department Officer,
DAVID BURK,
in the official capacity as Orlando Police
Department Office,
TASER INTERNATIONAL, INC.,
a foreign corporation,
CITY OF ORLANDO,
a political subdivision of the State of Florida,

llllllllllllllllllllllllllllllllllllllllDefendants - Appellees.

                               ________________________

                       Appeal from the United States District Court
                           for the Middle District of Florida
                             ________________________

                                      (January 31, 2012)

Before HULL, MARCUS and BLACK, Circuit Judges.

PER CURIAM:

       Amy Shirley Oliver (“Oliver”), as personal representative of the estate of

Anthony Carl Oliver, Sr., appeals from the district court’s final order granting

summary judgment in favor of Officer Lori Fiorino, Officer David Burk, Taser

International, Inc., and City of Orlando (collectively, “the Defendants”), in Oliver’s

civil rights action. The first time the case was before us on appeal, Officers Burk and

Fiorino took an interlocutory appeal of the district court’s decision denying their

qualified immunity motions for summary judgment, and we affirmed the trial court’s

order. Oliver v. Fiorino, 586 F.3d 898 (11th Cir. 2009). The case was then remanded

to the trial court for further proceedings. In this appeal, Oliver argues that the district




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court violated the law of the case doctrine by granting the Defendants’ Daubert1 and

summary judgment motions. After thorough review, we affirm.

      We review a district court’s grant of summary judgment de novo, viewing all

evidence and drawing all reasonable inferences in favor of the non-moving party.

Shiver v. Chertoff, 549 F.3d 1342, 1343 (11th Cir. 2008). Under Rule 56, summary

judgment is proper if the movant shows that there is no genuine issue as to any

material fact and the movant is entitled to judgment as a matter of law. Fed.R.Civ.P.

56(a). We review a trial court’s decision to exclude an expert’s testimony pursuant

to Daubert for abuse of discretion. Kilpatrick v. Breg, Inc., 613 F.3d 1329, 1334

(11th Cir. 2010). “We review de novo the district court’s application of the law of

the case doctrine.” Alphamed, Inc. v. B. Braun Med., Inc., 367 F.3d 1280, 1285 (11th

Cir.2004).

      The relevant facts and procedural history of the case are these. Oliver’s case

arose from the death of her son, Anthony Oliver, who had died after Officers Fiorino

and Burk shocked him with a Taser gun, or Taser Electronic Control Device (“Taser

ECD”). Oliver alleged that the officers used excessive and unreasonable force in

violation of Anthony Oliver’s Fourth Amendment rights, and alleged various actions

in tort against Taser. Prior to the first appeal to this Court, Taser had filed in the


      1
          Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).

                                               3
district court a summary judgment motion and a Daubert motion to exclude Oliver’s

medical causation expert, Dr. Glenn Rudner. The district court denied Taser’s

Daubert motion, as well as the summary judgment motion based on qualified

immunity filed by defendants Fiorino, Burk and the City of Orlando. The officers

then appealed the order denying their summary judgment motion requesting qualified

immunity, and we affirmed.

      On remand, a new judge was assigned to the case. Thereafter, Taser filed a

motion for leave to supplement expert witness reports, noting the new scientific

testing regarding the Taser ECD that had taken place during the time that the case had

been on appeal, and requesting that the respective parties’ experts be allowed to

supplement their reports and opinions to take that scientific knowledge into account.

In response, Oliver’s counsel agreed with Taser’s request, and further requested that

Oliver also be allowed to supplement her expert witness reports and, if necessary,

retain additional experts. On May 27, 2010, the trial court granted both parties’

requests. Pursuant to the court’s order, a new case management and scheduling order

was entered setting forth various deadlines for the disclosure of expert witness

reports.

      In accordance with the second amended case management and scheduling

order, Taser supplemented the reports of numerous experts reflecting the latest

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scientific research concerning the effect of the Taser ECD on the human body.

Based on these reports, the Defendants filed a renewed motion to exclude Dr. Rudner,

and also filed renewed motions for summary judgment on the issue of causation. The

plaintiff did not supplement the report of her causation expert, Dr. Rudner, nor did

she retain any new experts. On May 31, 2011, the court entered an order granting all

motions to exclude Dr. Rudner and all pending motions for summary judgment.

Specifically, it held that “the methodology used by Dr. Rudner to reach his opinions

is conclusory and unreliable, and therefore, his opinion testimony will be excluded.

Furthermore, without Dr. Rudner’s testimony, Plaintiff has failed to present any

evidence of causation, and Defendants’ motions for summary judgment consequently

must be granted.” This timely appeal follows.

      “Under the law of the case doctrine, both the district court and the appellate

court are generally bound by a prior appellate decision of the same case. The law of

the case doctrine, however, bars consideration of only those legal issues that were

actually, or by necessary implication, decided in the former proceeding.” Jackson v.

State of Alabama State Tenure Com’n, 405 F.3d 1276, 1283 (11th Cir. 2005)

(quotation omitted). Nevertheless, because the “law of the case applies only where

there has been a final judgment[,] a court’s previous rulings may be reconsidered as

long as the case remains within the jurisdiction of the district court.” Vintilla v.

                                         5
United States, 931 F.2d 1444, 1447 (11th Cir. 1991) (quotation omitted). Morever,

there are exceptions to the law of the case doctrine, namely, where the defendant can

show either (1) new evidence; (2) an intervening change in the law that dictates a

different result; or (3) that the prior decision was clearly erroneous and would result

in manifest injustice. Piambino v. Bailey, 757 F.2d 1112, 1120 (11th Cir. 1985).

      Rule 702 of the Federal Rules of Evidence allows an expert to testify in a case,

provided that “scientific, technical, or other specialized knowledge” will assist the

trier of fact. Fed. R. Evid. 702. Additionally, the expert must be qualified by

“knowledge, skill, experience, training, or education” and may testify to an opinion

if (1) “the testimony is based on sufficient facts or data,” (2) “the testimony is the

product of reliable principles and methods,” and (3) the witness “has reliably applied

the principles and methods to the facts of the case.” Id.

      In Daubert, the Supreme Court explained that through Rule 702, courts perform

a “gatekeeping” function -- specifically, they determine whether the proffered expert

testimony is reliable and relevant. Daubert, 509 U.S. at 589 n.7, 590-91. Thus, in

order for expert testimony to be admissible, a district court must determine that

      (1) the expert is qualified to testify competently regarding the matters he
      intends to address; (2) the methodology by which the expert reaches his
      conclusions is sufficiently reliable as determined by the sort of inquiry
      mandated in Daubert; and (3) the testimony assists the trier of fact,



                                          6
       through the application of scientific, technical, or specialized expertise,
       to understand the evidence or to determine a fact in issue.

United States v. Frazier, 387 F.3d 1244, 1260 (11th Cir. 2004) (quotation omitted).

       As an initial matter, the law of the case doctrine does not apply here because

the first appeal in this case did not address the district court’s original Daubert ruling.

Rather, the only issues resolved and considered during the initial appeal related to

qualified immunity defenses asserted by Fiorino and Burk in their motion for

summary judgment. See Oliver, 586 F.3d at 904 (“The only issue before us is

whether Officers Fiorino and Burk are entitled to qualified immunity on the Fourth

Amendment claim that they used excessive and unreasonable force by repeatedly

tasering Oliver.”). In so doing, we “resolve[d] all issues of material fact in favor of

the plaintiff,” id. at 901, and as relevant here, simply recited from the record that

existed at the time that Dr. Rudner’s expert report had opined “to a reasonable degree

of medical certainty” about the cause of Oliver’s death. Id. at 904. Notably,

however, we were not asked to address, and did not address, any arguments

concerning whether Dr. Rudner’s expert report used reliable methodology or

otherwise passed muster under Daubert.2 Therefore, because no Daubert issues were


       2
         This is because the district court’s original Daubert ruling was a non-appealable
interlocutory order, which the district court had not primed for interlocutory appeal. See 28
U.S.C. § 1292(b) (providing how a district court may make an otherwise non-appealable order
appealable).

                                               7
actually, or by necessary implication, decided in the first appeal, the law of the case

doctrine did not apply.

      Furthermore, since Daubert was not addressed in the appeal, the district court

had the right to reconsider its previous rulings on remand. As reflected in the record,

at the time the district court entered its order on remand granting the Defendants’

second Daubert motion and renewed motions for summary judgment, no final

judgment had been entered against the City of Orlando, Fiorino or Burk. Therefore,

the court had the discretion and authority to review its prior rulings and orders and

the law of the case doctrine did not apply. See Vintilla, 931 F.2d at 1447; see also

Technical Resource Serv., Inc. v. Dornier Medical Sys., Inc., 134 F.3d 1458, 1465 n.9

(11th Cir. 1998) (noting that a second judge may reconsider rulings by the first judge

before final judgment is entered).

      But even if the law of the case doctrine were to apply here, the district court

properly applied the exception to the doctrine based on new evidence. As the record

shows, on remand, the Defendants introduced new scientific testing regarding the

Taser ECD that had taken place during the time that the case had been on appeal, and

a follow-up deposition of Dr. Rudner. The district court specifically noted that new

evidence had arisen during the pendency of the appeal, and that it was relying on that

evidence, in part, in reaching its decision. See Dist. Ct. Order at 4 n.5 (May 31, 2011)

                                           8
(noting, among other things, that “the second deposition of Dr. Rudner (taken January

5, 2011) constitutes new evidence that must be considered”); id. at 6-7 (“The Court

has reviewed Dr. Rudner’s deposition, expert report, second expert report, and second

deposition in order to determine if Dr. Rudner’s expert testimony meets the

requirements set forth by Daubert and Rule 702.”).

      Because this new evidence was presented to and considered by the district

court, the district court was not bound by the law of the case, if any. Piambino, 757

F.2d at 1120; see also Jackson, 405 F.3d at 1283 (“When the record changes, which

is to say when the evidence and the inferences that may be drawn from it change, the

issue presented changes as well”). As a result, the district court did not violate the

law of the case doctrine when it granted the Defendants’ Daubert and summary

judgment motions. And indeed, it is worth noting that Oliver does not challenge the

existence of this new evidence, much less the substance of the district court’s rulings.

Accordingly, we affirm.

      AFFIRMED.




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