                     United States Court of Appeals
                             FOR THE EIGHTH CIRCUIT
                                ________________

                                   No. 00-2602
                                ________________

Columbus Miles,                           *
                                          *
             Appellant,                   *
                                          *       Appeal from the United States
      v.                                  *       District Court for the
                                          *       Western District of Arkansas.
General Motors Corporation,               *
                                          *
             Appellee.                    *

                                ________________

                                Submitted: April 9, 2001
                                    Filed: August 17, 2001
                                ________________

Before HANSEN and BYE, Circuit Judges, and MELLOY,1 District Judge.
                          ________________

HANSEN, Circuit Judge.

      Columbus Miles, a resident of Arkansas, collided with the rear bumper of a 1983
Chevrolet Silverado pickup truck while riding his motorcycle on a northern Louisiana
highway. Miles's left leg was amputated below the knee as a result of the collision.
Miles filed this diversity suit against General Motors Corporation (GM), the truck's
manufacturer, and Harley Davidson, the manufacturer of his motorcycle, alleging a


      1
        The Honorable Michael J. Melloy, United States District Judge for the Northern
District of Iowa, sitting by designation.
breach of implied warranty, negligence, and strict products liability. Before trial,
Harley Davidson was dismissed as a party. After a jury found in favor of GM, Miles
filed a motion for a new trial, asserting newly discovered evidence, discovery abuse by
GM, and that the district court erroneously admitted expert testimony and testimony
surrounding Miles's alleged odor of alcohol after the accident. The district court2
denied Miles's motion on all counts, and Miles appeals. We affirm.

                                           I.

        On October 28, 1995, at around 7:30 in the evening, Miles was traveling north
on Highway 142 in Louisiana while riding his Harley Davidson Sportster motorcycle.
The driver of a Silverado pickup truck attempted to turn south onto Highway 142 from
an intersecting side road, but the truck stalled after crossing the center line and came
to a stop partially blocking the northbound lane. Miles was traveling at approximately
55 miles per hour when he approached the stalled pickup truck, but he did not apply
his brakes. Instead, Miles attempted to avoid hitting the truck by swerving around the
rear, but at the last second straightened his bike because he thought he was about to hit
a tree. By straightening the bike, however, the lower portion of Miles's left leg hit the
truck's back bumper and his leg was irreparably damaged.

      Immediately after the collision, the driver of the pickup truck and a nearby
neighbor, who was a registered nurse, rendered first aid to Miles while awaiting an
ambulance. Both the driver and the neighbor stated that Miles smelled of alcohol. A
law enforcement officer, Fred Murphy, arrived at the accident scene to investigate.
Officer Murphy stated that he could smell alcohol on Miles, but Officer Murphy did not
conduct Breathalyzer or blood tests or note his observation in his accident report.
Miles admitted at trial that he had consumed a portion of two beers shortly before the


      2
        The Honorable Harry F. Barnes, United States District Judge for the Western
District of Arkansas.
                                           2
accident occurred. A toxicology screen was performed on Miles two and a half hours
after the accident occurred and while he was admitted to a local hospital for treatment.
Miles received 6000 cc of intravenous fluids and a partial blood transfusion before his
blood was tested. The toxicology screen revealed no evidence of alcohol in Miles's
bloodstream.

       In Miles's suit against GM, he alleged that he was injured because the rear
bumper on the pickup truck was negligently designed and was an unreasonably
dangerous product. Miles contended that when the bumper was attached to the pickup
truck, it curved around and extended beyond the side of the vehicle, resulting in a
dangerous gap between the bumper and the sheet metal fender of the truck.
Consequently, his theory was that the curved sharp end of the protruding bumper acted
like a large hook upon impact with his leg. GM responded that its bumper was not
defective and that Miles contributed to the accident by failing to take proper evasive
action or by misperceiving the accident scene or both. Before trial, Miles filed a
motion in limine to exclude any evidence of his alcohol consumption and the odor of
alcohol at the accident scene, as well as to exclude the testimony of two GM expert
witnesses who planned to testify that the GM bumper was not dangerous or defective
and that Miles sustained the injury to his left leg when he struck the flat end of the
bumper--not the curved, gapped end as he claimed. The district court denied the
motion, holding the odor of alcohol evidence admissible because GM had raised
comparative fault as an affirmative defense and further holding that the two expert
witnesses were qualified to offer testimony about the bumper design, accident
reconstruction, and injury causation. The case proceeded to trial, and a jury rendered
its verdict in favor of GM. After the jury verdict, Miles filed a motion for new trial, but
filed his notice of appeal prior to the district court's disposition of that motion.
Subsequently, the district court denied the motion for a new trial.




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                                          II.

       At the outset, Miles attempts to argue issues that were denied by the district
court in Miles's motion for a new trial and which were not included in his notice of
appeal filed prior to the postjudgment motion; specifically, uncovering newly
discovered evidence of other bumper-related accidents and alleged discovery abuse by
GM. At the time the notice of appeal in this case was filed on June 27, 2000, Miles's
motion seeking a new trial had been filed but not decided. The district court did not
deny the motion until July 18, 2000, after the notice of appeal had been filed. At that
time, the appeal from the judgment ripened, and we gained jurisdiction. Under Federal
Rule of Appellate Procedure 4(a)(4), Miles's notice of appeal is treated as merely
dormant until the date the postjudgment motion is decided. Miles failed to file an
amended notice of appeal from the district court's denial of his motion for new trial.
We therefore lack jurisdiction over his challenges associated with the denied motion.
See Fed. R. App. P. 4(a)(4)(B).3

      Turning to the issues that Miles appeals which originate in the denial of his
motion in limine, Miles first argues that the district court erred when it admitted
evidence that he smelled of alcohol at the accident scene. We review a district court's
admission of evidence for an abuse of discretion. Bunting v. Sea Ray, Inc., 99 F.3d


      3
       Federal Rule of Appellate Procedure 4(a)(4)(B)(i)-(ii) in pertinent part states:

      If a party files a notice of appeal after the court announces or enters a
      judgment--but before it disposes of any motion listed in Rule 4(a)(4)(A)
      [including a motion for new trial under Rule 59]--the notice becomes
      effective to appeal a judgment or order, in whole or in part, when the
      order disposing of the last such remaining motion is entered. A party
      intending to challenge an order disposing of any motion listed in Rule
      4(a)(4)(A), or a judgment altered or amended upon such a motion, must
      file . . . an amended notice of appeal . . . . (Emphasis added).


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887, 891 (8th Cir. 1996). We find no abuse of discretion in this instance because
Miles's alcohol consumption was relevant to the question of whether Miles contributed
to the accident. See Balentine v. Sparkman, 937 S.W.2d 647, 650 (Ark. 1997)
(allowing the jury to consider evidence of alcohol consumption when determining
impairment); Inderrieden v. Phillips, 741 S.W.2d 255, 256 (Ark. 1987) (holding
whether alcohol consumption contributed to an automobile accident was a fact question
for the jury to determine); cf. City of Little Rock v. Cameron, 897 S.W.2d 562, 564
(Ark. 1995) ("[V]oluntary intoxication may be a factor to be considered by the trier of
fact in determining negligence.").

        Miles concedes that if the evidence supports an inference of intoxication then the
odor of alcohol evidence is admissible under Arkansas law. (Appellant's Br. at 12.)
At trial, the witnesses who were first at the accident scene and the investigating law
enforcement officer testified that they could smell alcohol on Miles's breath. Miles
testified that he had consumed at least a portion of two beers before the accident. He
also testified that he saw two trucks pull into the intersection and that he did not swerve
behind the GM truck to avoid the impact because he was afraid of colliding with a tree
that he thought he saw near the intersection. The existence of the second truck and the
tree was never substantiated, however. Moreover, prior to impact, Miles slowed his
accelerating motorcycle by merely releasing the throttle and did not engage his brakes.
Miles contends that the negative blood test performed at the hospital after receiving
intravenous fluids and a partial blood transfusion illustrates that he was not intoxicated
at the time of the accident, and thus the evidence was inadmissible. We are
unpersuaded. Given the circumstances surrounding the accident, the jury was entitled
to consider whether Miles's alcohol consumption contributed to the accident.
Furthermore, Miles himself first raised the issue of alcohol consumption in voir dire,
in his opening statement, and on direct examination of several witnesses in his case in
chief.




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       Miles next asserts that GM's experts, Walter Zych, a mechanical engineer, and
Dr. Charles Moffatt, an engineer specializing in biomechanics and accident
reconstruction, were not qualified to testify as experts because Zych was not versed on
the issue of hooking bumpers and Dr. Moffatt used faulty methodology in forming his
opinion on injury causation. Miles contends that the district court should have
disallowed their testimony because it was unreliable and did not fit the facts of this
case. Admission of expert testimony is committed to the broad discretion of the trial
court. See Arkwright Mut. Ins. Co. v. Gwinner Oil, Inc., 125 F.3d 1176, 1182 (8th Cir.
1997) (reviewing for an abuse of discretion).

        Under Federal Rule of Evidence 702, "a witness qualified as an expert by
knowledge, skill, experience, training, or education" may offer opinion testimony if that
testimony will "assist the trier of fact" in determining an issue in the case. "[D]oubts
regarding whether an expert's testimony will be useful should generally be resolved in
favor of admissibility." Clark v. Heidrick, 150 F.3d 912, 915 (8th Cir. 1998) (internal
quotations omitted). The district court must ensure that the testimony admitted under
Rule 702 is both relevant and reliable. Daubert v. Merrell Dow Pharm., Inc., 509 U.S.
579, 589 (1993). As evidence of Zych's infirmity as an expert, Miles points to Zych's
deposition testimony when he refused to speculate as to the distance between the
truck's bumper and the sheet metal after viewing several photographs taken of the truck
after the accident and to Zych's unfamiliarity with the concept of hooking bumpers.

       It is readily apparent that Zych was qualified as an expert engineer and was
rightfully allowed to testify. Zych has designed and tested bumpers for production
vehicles and has been involved with automobile design and testing for over 30 years.
He also has testified as an expert witness for GM more than 200 times. GM offered
Zych as an expert to explain why the gap between the bumper and sheet metal was
necessary and to present his opinion that GM's bumper was safe. We see his proposed
testimony as a highly useful tool for the jury to consider when determining fault.
Moreover, Zych's testimony at trial comported with what was anticipated: Zych

                                           6
testified about the general purpose of bumpers, how bumpers were tested, and the
amount of clearance between the bumper and the truck's sheet metal based upon GM
drawings. He also opined that the design of the truck and its bumper were safe,
discussing both the lack of investigations by the National Highway Traffic Safety
Administration and lack of lawsuits involving this particular GM truck and bumper.

       Miles also contends that the district court should have excluded Dr. Moffatt's
testimony because he used faulty methodology in forming his opinions about how Miles
received his injuries and in reconstructing the accident scene. Miles asserts that Dr.
Moffatt's opinions were unreliable because at the time of Dr. Moffatt's deposition he
had not examined Miles, the x-rays taken of Miles's leg, the motorcycle, the truck, or
the scene of the accident. Before rendering his opinions to the jury, however, Dr.
Moffatt reconstructed the accident by reviewing the police report; photographs of the
scene; Miles's medical records; Miles's radiology reports, which interpreted Miles's x-
rays; witness statements and depositions; and medical literature. Simply because Dr.
Moffatt did not conduct the reconstruction in the manner in which Miles found most
suitable, does not render Dr. Moffatt's methodology fallible. It appears to us that Dr.
Moffatt was able to glean the same--if not more useful--information through the
methods he used.

      We conclude that Miles's challenge to Zych's and Dr. Moffatt's knowledge and
methodology goes to the weight that the jury accords the testimony rather than to its
admissibility. See Sphere Drake Ins. PLC v. Trisko, 226 F.3d 951, 955 (8th Cir.
2000); Hose v. Chicago N.W. Transp. Co., 70 F.3d 968, 974 (8th Cir. 1995). We
conclude that Miles's criticism of the experts' testimony is the proper subject for a
thorough cross-examination and not the basis for the absolute exclusion of their
testimony. See Hose, 70 F.3d at 974.




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                                  III.

Accordingly, we affirm the judgment of the district court.

A true copy.

      Attest:

               CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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