                                                            [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT                     FILED
                          ________________________         U.S. COURT OF APPEALS
                                                             ELEVENTH CIRCUIT
                                                               September 29, 2005
                                 No. 04-13762                 THOMAS K. KAHN
                           ________________________               CLERK

                   D. C. Docket No. 01-00266-CV-OC-22-GRJ


KRISTINE MARY NELSON,
as Personal Representative of the
Estate of Robert Bruce Nelson,

                                                                  Plaintiff-Appellee,

                                     versus

FREIGHTLINER, LLC,
a foreign limited liability corporation,
INTERSTATE EQUIPMENT LEASING, INC.,
a foreign corporation,
SWIFT TRANSPORTATION,
a foreign corporation,


                                                          Defendants-Appellants.


                           ________________________

                   Appeal from the United States District Court
                       for the Middle District of Florida
                        _________________________
                             (September 29, 2005)
Before DUBINA, PRYOR and KRAVITCH, Circuit Judges.

PER CURIAM:

      This appeal raises several issues regarding rulings made by the district court

in this suit brought by Kristine Mary Nelson against Freightliner, LLC, Interstate

Equipment Leasing, Inc., and Swift Transportation Co., Inc., for the wrongful

death of her husband, Robert Bruce Nelson (decedent). Nelson alleged that the

decedent, a long-haul truck driver, died from carbon monoxide intoxication when

carbon monoxide leaked into the cab of his truck due to the defendants’

negligence. A jury returned a verdict in favor of Nelson.

      The defendants appeal on several grounds. The defendants argue that the

district court erroneously applied Florida law and erroneously allowed an inference

of negligence from the evidence presented. The defendants also appeal several

evidentiary rulings of the district court. Because the district court correctly

concluded both that Florida law governed this case and an inference of negligence

was permitted under Florida law, and the district court did not abuse its discretion

in its evidentiary rulings, we affirm.

                                 I. BACKGROUND

      In April 1999, the decedent began employment as a truck driver for Swift

Transportation with his base at the Swift terminal in Ocala, Florida. In May 2000,

                                           2
the decedent became an independent contractor-owner, and shortly thereafter, he

took possession of a new Freightliner diesel tractor-trailer truck at a Swift facility

in Portland, Oregon. On June 8, 2000, after making several trips with the truck, the

decedent advised the dispatcher that he would stop for the night at a rest stop in

Kentucky, before completing a delivery in Louisville, Kentucky.

      On the morning of June 9, 2000, the dispatcher noticed that the decedent’s

truck had not moved since the previous night, and she attempted to contact him.

Because she was unable to contact the decedent, an investigation was conducted to

locate his truck. The decedent was found dead in the cab of his truck at

approximately 12:30 in the afternoon. The truck was idling and locked and there

were no obvious signs of the cause of death. The decedent’s body was lying in the

fetal position, face down between the seats of the truck.

      Due to the circumstances surrounding his death, the decedent’s body was

sent to the Office of the Chief Medical Examiner in Louisville, Kentucky, for an

autopsy. Dr. Donna Hunsaker, an assistant medical examiner, performed the

autopsy on June 10, 2000. Hunsaker concluded from personal observation that the

decedent died from ischemic heart disease. Hunsaker prepared an autopsy report

and recorded her diagnosis.

      Because the decedent was found in an idling truck, Hunsaker also sent a



                                           3
sample of the decedent’s blood to the Kentucky state laboratory to be tested for

carbon monoxide. After performing a blood test, the laboratory concluded that the

blood contained 67 percent carboxyhemoglobin, hemoglobin bound to carbon

monoxide. When Hunsaker received the results of the blood test, she amended her

diagnosis of the cause of death to carbon monoxide intoxication from motor

vehicle exhaust.

      Nelson sued the defendants in Florida state court. The defendants removed

the case to federal court based on diversity jurisdiction and answered the complaint

after the district court denied their motions to dismiss the complaint. The

defendants then filed a choice of law memorandum and argued that the district

court should apply Kentucky law, because the death occurred in Kentucky and no

other state had more significant contacts. After reviewing the relevant contacts and

choice of law rules, the district court ruled that Florida law governed the case. The

district court also denied the defendants’ motion for summary judgment.

      The defendants moved to exclude the results of the Kentucky laboratory

blood test under the Federal Rules of Evidence and Daubert v. Merrell Dow

Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786 (1993). That pretrial motion

was referred to Magistrate Judge Gary Jones. After a Daubert hearing, Judge Jones

denied the motion.



                                          4
      The case went to trial before Judge William Hodges. After presentation of

all the evidence, the jury deadlocked on the question of cause of death. Judge

Hodges declared a mistrial.

      A second trial began seven months later before Judge Anne Conway. Judge

Conway bifurcated the trial between liability and damages. Judge Conway adopted

the rulings made by Judge Hodges in the earlier trial as law of the case. At the

close of the second trial, the jury found the defendants liable for the death of

Robert Bruce Nelson and awarded more than four million dollars in damages.

Judge Conway denied the defendants’ post-trial motions. The defendants appeal.

                          II. STANDARD OF REVIEW

      This Court reviews the “district court’s choice of law de novo.” Shaps v.

Provident Life & Acc. Ins. Co., 317 F.3d 1326, 1329 (11th Cir. 2003). The denial

of a motion for judgment as a matter of law is also reviewed de novo. Mut. Serv.

Cas. Ins. Co. v. Henderson, 368 F.3d 1309, 1314 (11th Cir. 2004). We review for

abuse of discretion the evidentiary rulings of the district court. McClain v.

Metabolife Int’l, Inc., 401 F.3d 1233, 1238 (11th Cir. 2005). We must affirm the

evidentiary rulings of the district court unless we determine that the district court

has made a “clear error of judgment or has applied an incorrect legal standard.” Id.

(internal quotation marks and citations omitted). “This deferential standard is not



                                           5
relaxed even though a ruling on the admissibility of expert evidence may be

outcome-determinative.” Allison v. McGhan Medical Corp., 184 F.3d 1300, 1306

(11th Cir. 1999). We may notice an error raised for the first time on appeal, if the

error is “‘so fundamental that it may have resulted in a miscarriage of justice.’” See

S.E.C. v. Diversified Corp. Consulting Group, 378 F.3d 1219, 1227 n.14 (11th Cir.

2004) (quoting 9A Charles Alan Wright & Arthur R. Miller, Federal Practice and

Procedure § 2472).

                                 III. DISCUSSION

      This appeal involves several discrete issues that we address separately. We

first address the defendants’ argument that the district court should have applied

Kentucky law to this case. Second, we address the defendants’ argument that the

district court erroneously denied judgment as a matter of law. Last, we address the

defendants’ arguments regarding the evidentiary rulings of the district court.

      A. The District Court Correctly Applied Florida Law.

      “In determining which law applies, a federal district court sitting in diversity

must apply the choice of law rules of the forum state.” Trumpet Vine Invs., N.V.

v. Union Capital Partners I., Inc., 92 F.3d 1110, 1115 (11th Cir. 1996). This suit

was brought in Florida. Florida choice of law rules, therefore, apply.

      In tort cases, Florida applies the significant relationship test of the



                                           6
Restatement (Second) of Conflict of Laws. Bishop v. Fla. Specialty Paint Co., 389

So. 2d 999, 1001 (Fla. 1980). The test involves consideration of several factors to

determine which state has the most contacts with the action or the greatest interest

in the outcome:

      (1) The rights and liabilities of the parties with respect to an issue in
      tort are determined by the local law of the state which, with respect to
      that issue, has the most significant relationship to the occurrence and
      the parties under the principles stated in § 6.
      (2) Contacts to be taken into account in applying the principles of § 6
      to determine the law applicable to an issue include
             (a) the place where the injury occurred,
             (b) the place where the conduct causing the injury
             occurred,
             (c) the domicil, residence, nationality, place of
             incorporation and place of business of the parties, and
             (d) the place where the relationship, if any, between the
             parties is centered.
      These contacts are to be evaluated according to their relative
      importance with respect to the particular issue.

Restatement (Second) of Conflict of Laws § 145. The Restatement then directs the

court to determine which state has the most significant relationship to the

occurrence and the parties by applying the following factors in section 6:

      (a) the needs of the interstate and international systems,
      (b) the relevant policies of the forum,
      (c) the relevant policies of other interested states and the relative
      interests of those states in the determination of the particular issue,
      (d) the protection of justified expectations,
      (e) the basic policies underlying the particular field of law,
      (f) certainty, predictability and uniformity of result, and
      (g) ease in the determination and application of the law to be applied.

                                          7
Id. § 6.

       We address the application of this test in two parts. First, we identify how

many sovereigns have an interest in this case. Second, we explain which sovereign

has the most significant relationship.

                  1. Six Sovereigns Have An Interest in This Case

       In the light of the factors stated in section 145, at least six sovereigns,

Kentucky, Florida, Oregon, Delaware, Arizona, and Canada, have an interest in

applying their law to this case. First, the injury occurred in Kentucky. Second, the

conduct alleged to have caused the injury occurred in Oregon where the truck was

manufactured, or Kentucky where the alleged malfunction occurred. Third, the

decedent was a Canadian resident, who had significant contacts with the State of

Florida. The decedent maintained a business address at his mother’s home in

Florida, a checking account in Florida, and a Florida voter identification card. The

plaintiff is a Canadian resident, but the decedent’s son, who is also a claimant, is a

resident of Florida. The defendants are incorporated and have their principal

places of business in Delaware, Arizona, and Oregon. In addition, Swift operates a

place of business in Florida. Fourth, the relationship between the decedent and

Swift was centered in Florida, because that was the decedent’s home base.

       As to these six interested sovereigns, we must determine which sovereign



                                            8
has the most significant relationship to the case or the most interest in having its

law applied. The parties understandably argue only for the application of either

Kentucky or Florida law. We, therefore, will not address the interests of Delaware,

Arizona, Oregon, and Canada. See Piamba Cortes v. Am. Airlines, Inc., 177 F.3d

1272, 1297 (11th Cir. 1999).

           2. Florida Has the Most Significant Relationship to This Case.

      In personal injury and wrongful death actions, the law of the place of the

injury is the default, unless another state has a more significant relationship to the

action:

      In an action for a personal injury, the local law of the state where the
      injury occurred determines the rights and liabilities of the parties,
      unless, with respect to the particular issue, some other state has a more
      significant relationship under the principles stated in § 6 to the
      occurrence and the parties, in which event the local law of the other
      state will be applied.

Restatement (Second) of Conflict of Laws § 146; see also id. § 175. Because the

accident occurred in Kentucky, the law of Kentucky should control this case,

unless Florida has a more significant relationship.

      To determine which state has the most significant relationship “we cannot

simply add up the factors delineated in section 145(2) and then apply the law of the

sovereign with the greatest numerical total. . . . Rather, we must, as mandated by

section 145(1), turn to the factors delineated in section 6 to determine which

                                           9
sovereign has the most significant contact.” Piamba Cortes, 177 F.3d at 1298-99

(quoting Judge v. Am. Motors Corp., 908 F.2d 1565, 1569 (11th Cir. 1990)).

      “The importance of these factors varies depending on the nature of the issue

that underlies the conflict of laws.” Piamba Cortes, 177 F.3d at 1299. In a tort

case, for example, factors (d) and (f) have little significance because torts,

especially unintentional torts, do not occur with predictability.

      [P]ersons who cause injury . . . usually act without giving thought to
      the law that may be applied to determine the legal consequences of
      this conduct. . . . [T]he values of certainty, predictability and
      uniformity of result are of lesser importance in torts than in areas
      where the parties and their lawyers are likely to give thought to the
      problem of the applicable law in planning their transactions.

Restatement (Second) of Conflict of Laws § 145 cmt. b. Because of the relative

insignificance of factors (d) and (f), the remaining five factors assume greater

importance. Id. Of these, “the section 6(2) analysis for wrongful death claims

‘turns in large part on the balance of competing interests contemplated by sections

6(2)(b) and 6(2)(c).’” Piamba Cortes, 177 F.3d at 1299 (quoting Judge, 908 F.2d

at 1569.).

      To balance the competing interests of Florida and Kentucky, we take three

steps. “First, we identify the particular rule of law to be applied by each interested

state. Second, we identify the purposes or policies underlying each state’s rule.

Third, we ‘assess the degree to which the purposes underlying each rule would be

                                           10
furthered by the rule’s application.’” Id. (internal citations omitted) (quoting Judge,

908 F.2d at 1569-70). Generally, the court should apply the law of the state whose

interests are most affected. Id.

      Both Kentucky and Florida have laws providing for recovery for wrongful

death. Kentucky law authorizes the personal representative of the deceased to

bring a suit for damages against the person who caused the death. Ky. Rev. St.

Ann. § 411.130(1). The damages recovered, less funeral expenses and costs of

administration and recovery, are distributed among the survivors according to the

statute. Id. § 411.130(2). Florida law permits survivors of the deceased to recover

the value of lost support and services, future loss of support and services, loss of

companionship or parental companionship, mental pain and suffering, medical or

funeral expenses, loss of earnings, and net accumulations. Fla. Stat. Ann. §§

768.18, 768.21. Recovery of damages in Florida depends on the survivor’s

relationship to the deceased. See id. § 768.21.

      Although the recovery and distribution of damages under Florida and

Kentucky law differs, the policy that underlies both statutes is to compensate the

survivors of the deceased for their loss. The express stated purpose of the Florida

statute is “to shift the losses resulting when wrongful death occurs from the

survivors of the decedent to the wrongdoer.” Id. § 768.17. Several factors show



                                          11
that the same public policy underlies the Kentucky wrongful death statute. The

Kentucky wrongful death statute allows survivors of the deceased, in a specific

order, to recover both compensatory and punitive damages for wrongful death.

Ky. Rev. Stat. Ann. § 411.130. In addition, the Constitution of the Commonwealth

of Kentucky expressly provides a cause of action for wrongful death, Ky. Const. §

241, and states that the “General Assembly shall have no power to limit the amount

to be recovered for injuries resulting in death, or for injuries to person or property.”

Ky. Const. § 54.

      Florida, however, has a greater interest in applying its law to this case than

Kentucky for several reasons. First, the interest of Kentucky in applying its law to

this case is minor: neither any plaintiff nor defendant is a resident of Kentucky, and

the only link between Kentucky and this case is the place of the injury. Second,

the decedent was at least a part-time resident of Florida. Florida has a significant

interest in insuring that the survivors of its residents are compensated for a

resident’s wrongful death. Third, at least one claimant, the decedent’s son, Steven,

is a resident of Florida. Florida has an interest in insuring that its residents are

fully compensated for their loss, and Florida law allows a child of the decedent to

recover for loss of support and services; loss of parental companionship,

instruction and guidance; and mental pain and suffering. Fl. Stat. Ann. §



                                           12
768.21(3). Kentucky law does not permit individual recovery by a survivor of a

decedent; the whole of the recovery under Kentucky law is divided among the

survivors of the deceased according to the statute. Ky. Rev. St. Ann. § 411.130(2).

Florida law, therefore, more fully compensates a claimant than does the law of

Kentucky.

      The remaining factors in section 6 also favor the application of Florida law.

Florida is the state in which the district court sits. The determination and

application of Florida law is, therefore, at least marginally easier than the

determination and application of Kentucky law, and the application of Florida law

does not offend the needs of the interstate system. The district court correctly

applied Florida law.

       B. The District Court Properly Denied Judgment As A Matter of Law.

      Under Florida law, a plaintiff in a products liability action may prove his

case by “creating a legal inference that the product was defective both at the time

of the injury and at the time it was within the control of the supplier.” Cassisi v.

Maytag Co., 396 So. 2d 1140, 1148 (Fla. Dist. Ct. App. 1981). This inference,

known as the Cassisi inference, “arises from the occurrence of the accident itself.”

Id. The Cassisi inference permits a plaintiff to bring a product defect case to the

jury even though the plaintiff cannot pinpoint a defect in the product. The plaintiff



                                           13
must prove only that a product malfunctioned during its normal use: “[W]hen a

product malfunctions during normal operation, a legal inference, which is in effect

a mirror reflection of the Restatement’s standard of product defectiveness, arises,

and the injured plaintiff thereby establishes a prima facie case for jury

consideration.” Id. at 1148.

      The defendants argue that they are entitled to judgment as a matter of law

because the plaintiff is not entitled to assert the Cassisi inference in this case. The

defendants argue that the Cassisi inference is inappropriate because Nelson has not

provided evidence of a malfunction in the diesel truck. Nelson alleges that the

decedent died from carbon monoxide poisoning, but the defendants argue that she

has produced no evidence apart from the level of carboxyhemoglobin allegedly

found in the decedent’s blood of either a defect or a malfunction. The defendants

assert that the diesel truck has been examined, and no evidence of a defect, leak, or

repair was found.

      The defendants’ argument fails. Nelson presented evidence of a product

malfunction in the form of the Kentucky lab report that the decedent had a

saturation of 67 percent carboxyhemoglobin in his blood when he died. There is

no dispute that, when he died, Nelson was operating his truck in a normal manner.

Because a diesel truck is designed to prevent carbon monoxide and other gases



                                           14
from leaking into the cab of the truck, evidence that carbon monoxide leaked into

the cab, during normal use, is evidence of a malfunction. Because Nelson

presented evidence of a malfunction of the diesel truck during its normal use, the

Cassisi inference was proper. The district court properly denied judgment as a

matter of law.

  C. The District Court Did Not Abuse Its Discretion in Its Evidentiary Rulings.

      Of key importance to this appeal is the admissibility of several forms of

scientific evidence that are crucial to Nelson’s case. Nelson alleges that the

decedent died from carbon monoxide intoxication when a defect in the

manufacture of the Freightliner truck allowed carbon monoxide to leak into the cab

of the truck. The defendants’ dispute both the existence of a defect in the truck and

that the decedent died from carbon monoxide intoxication. To prevail in her

wrongful death suit, Nelson had to prove that carbon monoxide intoxication was

the cause of death and the intoxication was caused by a defect in the truck.

      To prove carbon monoxide intoxication was the cause of the decedent’s

death, Nelson offered, in addition to other evidence, the following three forms of

evidence: (1) the results of a blood test performed by the Kentucky state lab; (2)

the testimony of Michael Ward, the individual who performed the blood test; and

(3) measurements of the amount of carbon monoxide emitted by a Freightliner



                                          15
truck. The defendants objected to the introduction of both the blood test and the

emissions tests as unreliable under Daubert. The defendants objected to the

testimony of Ward, who testified as a fact witness at trial, on the ground that the

testimony given was actually expert testimony and Ward was not qualified as an

expert. The district court admitted all three forms of evidence.

      Our review of these evidentiary rulings is divided into four parts. We first

address the standard for the admissibility of expert testimony. We then address the

admissibility of each form of evidence in turn.

1. The Admissibility of Expert Testimony.

      The trial court exercises a gatekeeping function with regard to all evidence

admitted at trial, and this function is especially important when expert testimony is

involved. See generally Daubert, 509 U.S. 579, 113 S. Ct. 2786. The admissibility

of expert evidence is governed by Rule 702 of the Federal Rules of Evidence,

which contains three indicia of reliability that the trial court must review to

determine the admissibility of the evidence:

      If scientific, technical, or other specialized knowledge will assist the
      trier of fact to understand the evidence or to determine a fact in issue,
      a witness qualified as an expert by knowledge, skill, experience,
      training, or education, may testify thereto in the form of an opinion or
      otherwise, 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.

                                           16
Fed. R. Evid. 702. “The burden of laying the proper foundation for the admission

of the expert testimony is on the party offering the expert, and admissibility must

be shown by a preponderance of the evidence.” Allison, 184 F.3d at 1306.

      In Daubert v. Merrell Dow Pharmaceuticals, Inc., the Supreme Court

considered the duties of a trial judge to determine the admissibility of expert

testimony under Rule 702, and the Court required the trial judge to “ensure that

any and all scientific testimony or evidence admitted is not only relevant, but

reliable.” 509 U.S. at 589, 113 S. Ct. at 2795. To aid in this determination, the

Supreme Court listed several indicia of reliability. Those indicia of reliability or

“general observations” regarding reliability include the following questions about

the expert’s reasoning or methodology: “(1) whether it can be (and has been)

tested; (2) whether it has been subjected to peer review and publication; (3) what

its known or potential rate of error is, and whether standards controlling its

operation exist; and (4) whether it is generally accepted in the field.” United States

v. Brown, 415 F.3d 1257, 1266-67 (11th Cir. 2005) (citing Daubert, 509 U.S. at

593-94, 113 S. Ct. at 2796). Using this framework regarding scientific testimony,

we turn to the admission of this form of evidence in this case.

2. The Admission of the Caboxyhemoglobin Test Was not an Abuse of Discretion.

      The primary evidence in support of Nelson’s theory that the decedent died



                                          17
from carbon monoxide intoxication is the report of the Kentucky lab that the

decedent’s blood was 67 percent saturated with carboxyhemoglobin. The

defendants moved to exclude the lab report as unreliable under Daubert. The

magistrate judge denied that motion.

      Our review of the admission of the lab report is divided into four parts.

First, we address the test performed by the Kentucky lab. Second, we address the

defendants’ challenge of that test under Daubert. Third, we address the multiple

errors of the magistrate judge in evaluating the Kentucky test. Finally, we address

why the district court, despite the errors of the magistrate judge, did not abuse its

discretion in admitting the lab report.

                   a. The Test Performed by the Kentucky Lab.

      Carboxyhemoglobin is the compound formed when carbon monoxide fuses

with hemoglobin in blood, rendering the hemoglobin incapable of fusing with

oxygen and transporting the oxygen to different parts of the body. A person dies

from carbon monoxide intoxication from asphyxiation, because the body cannot

get sufficient oxygen. Hemoglobin that is capable of fusing with oxygen or carbon

monoxide is referred to as deoxyhemoglobin. In addition to deoxyhemoglobin,

blood contains complex forms of hemoglobin, such as methemoglobin and

sulfhemoglobin. These complex forms of hemoglobin are non-functional or



                                           18
incapable of fusing with oxygen or carbon monoxide. Both carboxyhemoglobin

and non-functional hemoglobin can accumulate in a body after death due to

decomposition.

      Scientists have developed several procedures to determine the level of

carboxyhemoglobin in blood. The procedures include gas chromatography and

visible spectrometry. The procedure used by the Kentucky lab is a

spectrophotometric method that uses light waves to measure the proportion of

carboxyhemoglobin in an individual’s blood. The procedure calculates the

percentage of hemoglobin bound to carbon monoxide by measurement against the

total amount of hemoglobin present in the blood.

      To perform the spectrophotometric method used in the Kentucky lab, the

following steps are taken: (1) a solution is prepared by adding a small amount

(0.25 ml) of concentrated ammonia to 200 milliliters (ml) of water and then adding

the blood sample until a red color appears; (2) the blood solution is then divided

into three tubes, which are labeled “S”, “O”, and “C”; (3) the tube labeled “O” is

saturated with oxygen and the tube labeled “C” is saturated with carbon monoxide;

(4) the “O” and “C” tubes are then inserted into an instrument called a UV

ultraviolet visible spectrophotometer; (5) the spectrophotometer measures the peak

absorbance of light in the tube marked “C”, which is assumed to be fully



                                          19
carboxylated; (6) the tube marked “S”, which is the unaltered blood sample, is then

substituted for the carboxylated tube and the peak absorbance of light in the sample

tube is measured; (7) the peak absorbance of the sample tube is then compared to

the peak absorbance of the carboxylated tube to obtain the relative absorbance or

level of carboxyhemoglobin in the blood sample.

      In sum, the above procedure measures the saturation of carboxyhemoglobin

by comparing light waves transmitted through three tubes. The tube marked “O” is

assumed to be 100 percent oxygen saturated. The tube marked “C” is assumed to

be 100 percent carbon monoxide saturated. The tube marked “S” is the original

sample. The relative percentage of carboxyhemoglobin in the original sample is

determined by measuring the ratio of absorbance of light in the original sample to

the absorbance of light in the carbon monoxide saturated sample.

        b. The Defendants’ Challenge of the Kentucky Test Under Daubert.

      The defendants challenged the reliability of the procedure used by the

Kentucky lab on the ground that the procedure does not eliminate the interference

created by the existence of non-functional hemoglobin, most specifically

methemoglobin, in post-mortem blood. The defendants also argued that the

procedure has not been subjected to peer review and publication and has no known

rate of error. In support of their challenge, the defendants presented the affidavit



                                          20
and testimony of Dr. Robert DeMott.

      Dr. DeMott opined that the procedure used by the Kentucky lab was

unreliable because it did not use a proper reducing agent to convert methemoglobin

to functional hemoglobin or deoxyhemoglobin. Dr. DeMott explained that because

methemoglobin is incapable of binding with carbon monoxide, the blood solution

saturated with carbon monoxide will only reach 100 percent carboxyhemoglobin if

any methemoglobin present in the sample is reduced. To negate interference from

methemoglobin, a reducing agent, such as sodium dithionite, must be added to the

blood to convert the methemoglobin to deoxyhemoglobin, or the test can result in

grossly overstated levels of carboxyhemoglobin.

      The Kentucky lab procedure does not call for the addition of sodium

dithionite to the sample to reduce methemoglobin. Ward testified that the

Kentucky lab uses ammonium hydroxide to perform the reducing function. The

defendants contend that ammonium hydroxide is not a reliable reducing agent.

      Dr. DeMott opined that, based on its chemical properties, ammonium

hydroxide does not have the reduction potential necessary to convert

methemoglobin to deoxyhemoglobin. Dr. DeMott testified, and cited numerous

articles in support of his opinion, that the commonly used reducing agent to reduce

methemoglobin to deoxyhemoglobin is sodium dithionite. In his affidavit, Dr.



                                         21
DeMott cited articles in support of his opinion that the presence of methemoglobin

will interfere with the carboxyhemoglobin reading from the spectrophotometric

method.

      Dr. DeMott concluded that the result reached by the Kentucky lab was not

an adequate basis to determine the toxicological cause of death. Dr. DeMott

opined that, due to the level of decomposition and heat to which the decedent’s

body was exposed, significant amounts of endogenously created

carboxyhemoglobin could have accumulated in the decedent’s blood after death

and could interfere with the carboxyhemoglobin result because it could not

distinguished from carboxyhemoglobin present before death. Dr. DeMott opined

that the breakdown of hemoglobin could have resulted in an inflated

carboxyhemoglobin result.

      Apart from the absence of sodium dithionite from the procedure used by the

Kentucky lab, the evidence, presented by the defendants, established that the

spectrophotometric method used by the Kentucky lab is a peer reviewed, generally

accepted method of carboxyhemoglobin testing. The defendants’ reliability

challenge focused solely on the existence of interfering factors in the blood, due to

decomposition or other factors, that can skew the results of the test, and, in

particular, the lack of a proper reducing agent used by the Kentucky lab.



                                          22
          c. The Magistrate Judge’s Daubert Hearing and Multiple Errors.

      Following a Daubert hearing, Judge Jones concluded that the results of the

carboxyhemoglobin test were admissible for several reasons. Judge Jones noted

that Nelson had not produced any publication in support of the procedure used by

the Kentucky lab, but found that fact outweighed by the ample evidence that the

Kentucky lab had used the procedure for over 20 years. Judge Jones further stated

that the method had been “peer reviewed” within the State of Kentucky by the

agencies that relied on the lab results. Finally, Judge Jones found that the dispute

between the parties regarding the appropriate use of ammonium hydroxide was a

question of weight, not admissibility.

      In his final order dated August 26, 2003, Judge Jones listed seven reasons

why the results of the carboxyhemoglobin test satisfied Daubert standards:

      (1) the Kentucky Laboratory’s methodology has been approved by
      independent outside consultants and has been used by the lab for a
      significant number of years, (2) the Kentucky Lab has been
      established by the State of Kentucky as the sole toxicological analyzer
      for postmortem blood samples in the State of Kentucky, (3) use of
      visual spectrometry (the method used by the Lab) is a method of
      analysis used for nearly thirty years and has been personally used by
      Michael Ward, the Toxicological Supervisor of the Kentucky Lab, for
      twenty-seven years, (4) test[] results rendered by the Kentucky Lab
      frequently have been retested, according to Dr. Hunsaker, and the
      results of the second tests were never statistically significant, (5)
      Ward, Dr. Montgomery and Dr. Hunsaker all testified that
      decomposition of the blood sample would not inflate the
      carboxyhemoglobin quantification by a statistically significant

                                          23
      amount, (6) the use of ammonium hydroxide as a reducing agent to
      take into account potential interferences is equally as effective as
      sodium dithionite–the reducing agent Defendants argue should have
      been used, and (7) the methodology used by the Kentucky Lab also
      insulates the results from matrix effects through the use of the
      calibration of the visual spectrometer for each individual test. While
      there is other evidence of record that supports Plaintiff’s argument
      that the testing methodology had sufficient indicia of reliability,
      suffice it to say that the dispute concerning the methodology used by
      the Kentucky Lab concerns which method is the best and not whether
      the method used by the Kentucky Laboratory is unreliable under a
      Daubert analysis.

      The majority of reasons cited by Judge Jones as indicia of reliability utterly

fail to establish the reliability of the carboxyhemoglobin test performed by the

Kentucky lab. There are, for example, at least two problems with the finding that

the “Kentucky Laboratory’s methodology has been approved by independent

outside consultants and has been used by the lab for a significant number of years.”

First, the only evidence of outside approval was the testimony of Ward, who

performed the test. Although Ward stated that an outside consultant, Dr.

Goldberger, had not found any errors with the method used by the Kentucky lab,

Dr. Goldberger did not testify. Neither did Nelson present an affidavit from Dr.

Goldberger nor any objective source to corroborate Ward’s statement. There is no

more evidence of outside support than Ward’s bald assertion. Reliability cannot be

established by the mere ipse dixit of an expert. United States v. Frazier, 387 F.3d

1244, 1261 (11th Cir. 2004). Second, that a laboratory has used a procedure for a

                                          24
number of years, without more, is not evidence of reliability. An unreliable test

does not become reliable just because the test is used for a lengthy period of time.

      Judge Jones also stated that “the Kentucky Lab has been established by the

State of Kentucky as the sole toxicological analyzer for postmortem blood samples

in the State of Kentucky.” This fact does not establish the reliability of the

methods used by the Kentucky Lab. The confidence of the Commonwealth of

Kentucky in its laboratory does not prove that the methods used by the lab are

scientifically sound.

      Neither is approval and use by the agencies of the Commonwealth of

Kentucky a form of peer review as suggested at the Daubert hearing. Peer review

involves “submission to the scrutiny of the scientific community.” Daubert, 509

U.S. at 593, 113 S. Ct. at 2797. Peer review is not acceptance by a collection of

agencies that are not qualified to comment on the reliability of a methodology.

      Judge Jones’s third reason, that “use of visual spectrometry (the method

used by the Lab) is a method of analysis used for nearly thirty years and has been

personally used by Michael Ward, the Toxicological Supervisor of the Kentucky

Lab, for twenty-seven years,” is similar to the first reason and is subject to the

same criticism. That Ward has used a methodology for 27 years does not establish

its reliability, and no evidence was presented that any entity other than the



                                           25
Kentucky lab used the test in question.

       Judge Jones’s fourth reason, that “test[] results rendered by the Kentucky

Lab frequently have been retested, according to Dr. Hunsaker, and the results of

the second tests were never statistically significant,” again does not establish

reliability. The testimony did not establish that the results of the Kentucky lab

were retested by another laboratory or with another method. That results from an

unreliable test, if retested using the same unreliable test, should result in

statistically similar results is not astonishing and is not evidence of reliability.

       Judge Jones’s sixth reason, that “the use of ammonium hydroxide as a

reducing agent to take into account potential interferences is equally as effective as

sodium dithionite–the reducing agent Defendants argue should have been used,”

begs the question. That ammonium hydroxide acts as a reducing agent is precisely

what the defendants dispute. A heavily disputed question regarding the efficacy of

a test is not an indicia of reliability.

       Judge Jones’s final reason, that “the methodology used by the Kentucky Lab

also insulates the results from matrix effects through the use of the calibration of

the visual spectrometer for each individual test,” again fails to address the

defendants’ criticism of the methodology. Whether the spectrometer was

calibrated would have a bearing on the accuracy of the results from a reliable test.



                                            26
Calibration of the spectrometer has no bearing on the reliability of the underlying

procedure.

 d. Despite the Errors of the Magistrate Judge, The District Court Did Not Abuse
              Its Discretion in Admitting the Kentucky Lab Report.

      Despite the multiple errors in the order of the magistrate judge, it was not an

abuse of discretion for the district court to admit the results of the

carboxyhemoglobin test. Although Nelson presented no valid evidence that the

use of ammonium hydroxide as a reducing agent has been tested, has been peer

reviewed, has a known rate of error, or is generally accepted in the scientific

community, the defendants ironically did an admirable job of presenting evidence

that the spectrophotometric procedure used by the Kentucky lab is reliable when

sodium dithionite is used as a reducing agent. The defendants also showed,

through cross-examination of Dr. Hunsaker, that, in the case of the decedent, there

was a valid scientific debate about both whether the presence of methemoglobin in

the blood sample would have a statistically significant effect on the

carboxyhemoglobin reading and whether endogenously created

carboxyhemoglobin would have a significant effect. Because there was testimony

that “decomposition of the blood sample would not inflate the carboxyhemoglobin

quantification by a statistically significant amount,” the district court did not abuse

its discretion by determining that the challenge to the carboxyhemoglobin test

                                           27
performed by the Kentucky lab involved a question of weight, not admissibility.

      Dr. DeMott criticized the procedure used by the Kentucky lab on the ground

that the presence of methemoglobin and endogenously created carboxyhemoglobin

would interfere with the carboxyhemoglobin reading. Dr. DeMott also stated that

methemoglobin and carboxyhemoglobin accumulated in a body with

decomposition and accumulated at a faster rate in the presence of heat. Because

the decedent’s body was exposed to heat after death and the decomposition noted

was moderate to severe, Dr. DeMott opined that enough methemoglobin and

endogenous carboxyhemoglobin could have accumulated in the decedent’s blood

to make the results of the carboxyhemoglobin test unreliable. The problem for the

defendants is that they elicited testimony from another witness to dispute Dr.

DeMott’s opinion.

      In their cross-examination of Dr. Hunsaker, who performed the autopsy of

the decedent, the defendants elicited testimony that the post-mortem accumulation

of methemoglobin in the decedent’s blood would not account for more than one to

two percent of the carboxyhemoglobin reading. At trial Dr. Hunsaker reaffirmed

her opinion that it was “about correct” that “one percent would account for Mr.

Nelson’s postmortem production of methemoglobin based upon the moderate to

severe decomposition.” Dr. Hunsaker also opined that the endogenously produced



                                         28
carboxyhemoglobin would be a very small amount.

      Regardless of what “reducing agent” was used, the accuracy of the test

performed by the Kentucky lab hinged on the dispute regarding the accumulation

of methemoglobin and endogenous carboxyhemoglobin after death. There was no

real dispute concerning the scientific validity of the underlying test. The only

dispute concerned the significance of any interference from methemoglobin and

endogenous carboxyhemoglobin. The evidence that the interference from

methemoglobin and endogenous carboxyhemoglobin, in this particular case, would

not be significant was sufficient to make the defendants’ evidentiary challenge a

matter of weight, not admissibility.

      “The alleged flaws in [the Kentucky methodology] are of a character that

impugn the accuracy of [the] results, not the general scientific validity of [the]

methods. The identification of such flaws in generally reliable scientific evidence

is precisely the role of cross-examination.” Quiet Technology DC-8, Inc. v.

Hurel-Dubois UK Ltd., 326 F.3d 1333, 1345 (11th Cir. 2003). Because the basic

methodology used by the Kentucky lab is a reliable and generally accepted

methodology and there was a legitimate dispute regarding the effect of the flaws

identified by the defendants, the district court did not abuse its discretion when it

found that the challenge regarded the weight to be given to the carboxyhemoglobin



                                           29
test and not its admissibility.

     3. The District Court Did Not Err When It Admitted Ward’s Testimony.

       The defendants also challenge the admissibility of elements of Ward’s

testimony, who was not disclosed or qualified as an expert witness but testified as a

lay witness. The defendants argue, and Nelson does not deny, that Ward testified

to matters that were outside the scope of his testimony as a fact witness. The

majority of the statements about which the defendants complain, however, were

elicited on cross-examination. In fact, Judge Conway commented during cross-

examination that she “[didn’t] know why counsel’s going into all these questions

with a fact witness.” “It is “a cardinal rule of appellate review that a party may not

challenge as error a ruling or other trial proceeding invited by that party.”’ United

States v. Ross, 131 F.3d 970, 988 (11th Cir. 1997). We do not address, therefore,

the defendants’ challenge with regard to Ward’s testimony that was elicited on

cross-examination.

       Although the remaining testimony about which the defendants complain was

elicited on direct examination, the defendants did not object to that testimony. Our

thorough review of the trial transcripts reveals that on only one occasion did the

defendants object to the testimony of Ward on the ground that it was outside the

scope of his testimony as a fact witness. That objection was sustained. Because



                                          30
they did not preserve their objection, we will entertain the defendants’ argument on

appeal only if any error was plain. Diversified Corp., 378 F.3d at 1227. We will

correct an error only if it “resulted in a miscarriage of justice.” Id. at 1227 n.14.

No reversal is required in this case.

      Assuming Ward testified to matters that were plainly outside the scope of his

testimony as a fact witness, any error in allowing that testimony was neither

particularly egregious nor did it result in a “miscarriage of justice.” Id. Although

Ward testified as a fact witness, he could have been qualified as an expert. Ward

had at least 28 years of experience in post-mortem blood analysis, had been a

Certified Toxicological Chemist for approximately 10 years, was employed as the

forensic laboratory supervisor for the Kentucky lab, and had testified regarding his

work in both state and federal court on multiple occasions. See Fed. R. Evid. 702;

United States v. Chastain, 198 F.3d 1338, 1348-49 (11th Cir. 1999). In addition,

Ward was vigorously cross-examined by the defendants regarding both his

qualifications and his opinions.

       4. The Admission of the Results of the Test Performed by Miller and
                 Bredemeyer Was Not an Abuse of Discretion.

      Lastly, the defendants argue that the district court erroneously allowed

Nelson’s experts, William Miller and Ronald Bredemeyer, to testify about carbon

monoxide emission measurements taken from a different model truck than that

                                           31
driven by the decedent. “As a general rule, the district court has wide discretion to

admit evidence of experiments conducted under substantially similar conditions.”

Barnes v. Gen. Motors Corp., 547 F.2d 275, 277 (5th Cir. 1977). The burden is on

the proponent “to lay a proper foundation demonstrating a similarity of

circumstances and conditions.” Id.

      Nelson presented evidence of carbon monoxide emissions testing performed

by Bredemeyer and Miller on a Freightliner truck with a Detroit Diesel engine,

Series 60 to show that the truck could produce enough carbon monoxide to kill a

person. Although the truck on which the experiment was performed was not the

same model as that driven by the decedent, Bredemeyer testified that the engine

and exhaust were “virtually the same as far as the exhaust system from the engine

back itself.” Bredemeyer further testified that the differences in the truck were

“nothing that would affect the difference in the emissions output of the engine.”

Over the defendants’ objection, the district court admitted the testimony and noted

that the differences in the truck went to the weight of the testimony and not its

admissibility. This conclusion was not an abuse of discretion.

      Similarly, the defendants’ criticisms of the test performed by Bredemeyer

and Miller on grounds of differences in location, temperature, and RPMs at which

the testing was performed affect the weight that should be given to the test results,



                                          32
not the admissibility of those results. The emissions testing was relevant. The

defendants argued that the truck the decedent was driving could not produce lethal

amounts of carbon monoxide. The test performed by Miller and Bredemeyer was

admitted to refute the defendants argument. Admission of the emissions testing

was not an abuse of discretion.

                                  IV. CONCLUSION

      After a careful and meticulous review of the record, we conclude that the

district court did not err in this case. The district court properly applied Florida

law and instructed the jury on the Cassisi inference, and the district court did not

err when it admitted the results of the carboxyhemoglobin test performed by the

Kentucky lab, the testimony of Michael Ward, and the emissions test performed by

Miller and Bredemeyer. The judgment of the district court is

      AFFIRMED.




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