                                                           [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS
                                                                  FILED
                      FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                        ________________________ ELEVENTH CIRCUIT
                                                             MARCH 14, 2007
                               No. 06-12660                 THOMAS K. KAHN
                           Non-Argument Calendar                CLERK
                         ________________________

                     D. C. Docket No. 02-20969-CV-DLG

RACHEL MCCOOL, as Personal Representative of
the Estate of Donald McCool, deceased, on behalf
of the Estate and on behalf of the survivors of
Decedent, Donald McCool, individually,
DONALD M. MCCOOL,


                                                    Plaintiffs-Appellants,

                                    versus

BRIDGESTONE/FIRESTONE NORTH AMERICAN TIRE,
LLC, a foreign corporation, f.k.a.
Bridgestone/Firestone, Inc.,
FIRESTONE TIRE AND RUBBER COMPANY,


                                                    Defendants-Appellees.

                         ________________________

                  Appeal from the United States District Court
                      for the Southern District of Florida
                        _________________________

                               (March 14, 2007)
Before DUBINA, CARNES and HULL, Circuit Judges.

PER CURIAM:

      Plaintiffs Rachel McCool, as representative for her husband’s estate, and her

son, Donald M. McCool, appeal the district court’s order entering final judgment in

favor of defendants in this products liability action. After review, we affirm.

                                 I. BACKGROUND

A.    Accident

      Donald L. McCool and his son were riding in a pickup truck when McCool

lost control of the vehicle, it crossed into the median and rolled over, killing

McCool and injuring his son. McCool’s widow and son (“plaintiffs”) filed this

lawsuit in Florida state court, alleging that the fatal accident was caused by one of

the pickup’s Firestone steel belted radial tires when the tread and outer steel belt

suddenly separated from the main body of the tire. Plaintiffs asserted claims

against defendants for negligent and defective design and manufacture and failure

to warn.

B.    Discovery and MDL Proceedings

      Defendants removed the action to the Southern District of Florida based on

diversity jurisdiction. The action was then transferred to the Southern District of

Indiana for consolidated multi-district litigation (“MDL”). While in MDL,

                                           2
plaintiffs retained William Nonnamaker, a tire failure analyst, as their expert

regarding the alleged defect in the tire.

      Nonnamaker produced a Rule 26 expert report, prepared August 28, 2002, in

which Nonnamaker opined, after inspecting the tire, that it had failed because

defendants failed “to design in an adequate safety margin and/or to maintain tight

enough tolerances in the manufacture of the tire . . . .” The report explained that

“built in weakness between the two steel belts along both edges caused separations

to develop” as the tire aged and that this condition “combined with the centrifugal

force of the rotation of the tire caused the tread and outer steel belt to come

completely off of the balance of the tires.” The report concluded that the tread

separation “created a vehicle handling control problem . . . .” The report also

contained a series of observations from Nonnamaker’s visual inspection of the tire,

including measurements and notations about the tire’s condition. However, the

report did not explain how these notations supported Nonnamaker’s conclusion

that the tire’s design had failed to include an adequate safety margin. Nor did the

report identify any scientific studies, industry testing or peer-reviewed articles to

support Nonnamaker’s opinion.

      On September 25, 2003, defendants deposed Nonnamaker. During the

deposition, Nonnamaker stated that an adequate safety margin would have been to



                                            3
include “nylon overlays” or “nylon cap plies” and that defendants’ failure to

include nylon cap plies in McCool’s steel belted radial tire caused the tire to fail.

The only support for Nonnamaker’s opinion cited during his deposition was the

fact that other tire experts held the same opinion. Nonnamaker admitted that he

had no experience in the design of steel belted radial tires or of nylon cap plies in

such tires, had never tested nylon cap plies in tires, had not published his theory

about the protective effect of nylon cap plies in steel belted radial tires and was not

aware of any other peer-reviewed publications regarding such a theory. Although

Nonnamaker mentioned that he had seen test data that indicated that nylon cap

plies improved the performance of tires, he did not bring that test data to his

deposition or list the data in his Rule 26 report. Nonnamaker also indicated that he

had not reviewed any documentation of a comparison between tires with and

without nylon cap plies that showed that nylon cap plies reduced tread belt

separation and that he could not identify any tests of steel belted radial passenger

tires that showed that nylon cap plies prevent tread belt separation.

      Defendants moved for summary judgment. The MDL court granted

summary judgment on all of plaintiffs’ claims except the defective design claim.

With regard to this claim, the MDL court noted that Nonnamaker’s testimony

regarding the tire’s lack of a nylon cap ply was “barely” sufficient evidence to



                                           4
support a jury finding of defective design, as follows:

             As for the plaintiffs’ design defect claim, however, Mr.
      Nonnamaker testified that the subject tire was defective because it did
      not have a nylon cap ply and that “nylon cap plies would have meant
      that the tire would not have failed when it did. It would have given
      additional service life.” While Mr. Nonnamaker provides little, if any
      scientific basis for this conclusion, that is, nonetheless, his expert
      testimony, and, in the event it survives Firestone’s inevitable Daubert
      challenge, it would be sufficient evidence, albeit barely, from which a
      jury reasonably could conclude that the tire was defective and that the
      defect caused the tire failure.

The MDL court remanded the action to the Southern District of Florida for further

proceedings on the remaining design defect claim.

C.    Daubert Motion and Response

      The district court set trial for the two-week trial calendar beginning February

6, 2006. On October 20, 2005, defendants filed a Daubert motion, seeking to

exclude Nonnamaker’s expert testimony because Nonnamaker was not qualified to

testify on the alleged design defect and Nonnamaker’s expert opinion was

unreliable. On November 4, 2005, one day before plaintiffs’ response to the

Daubert motion was due, plaintiffs sought an extension of time. The district court

granted plaintiffs’ request and directed plaintiffs to file their response within thirty

days, that is, by December 8, 2005.

      On December 5, 2005, plaintiffs sought an additional extension through

December 14, 2005. Plaintiffs’ motion noted that defendants did not oppose an

                                            5
extension through December 12. By December 8, the district court had not ruled

on plaintiffs’ motion for an extension of time.

      Nonetheless, plaintiffs did not file their response to the Daubert motion on

the court-ordered due date of December 8. Instead, plaintiffs attempted to file their

response on December 12. Although the clerk’s office accepted plaintiffs’ Daubert

response and stamped it filed, the docket clerk crossed out the word “filed” and

wrote the word “Rec’d” in its place and did not enter the Daubert response on the

docket. Also on December 12, plaintiffs filed a motion for a Rule 104(a) hearing

on defendants’ Daubert motion.

      On that same day, the district court denied plaintiffs’ motion for an

extension of time and ordered plaintiffs to show cause for failing to comply with

the court-ordered deadline of December 8. Plaintiffs responded that they had

moved for an extension of time and had met the extended deadline agreed to by

opposing counsel.

      After conducting a show cause hearing, the district court entered an order in

which it explained that the parties could not amend court-ordered filing deadlines

and concluded that plaintiffs had not filed their Daubert response by the court-

ordered deadline of December 8. The district court also found that plaintiffs’

Daubert response had never been filed, as reflected on the docket, and stated that it



                                          6
would not consider unfiled pleadings. The district court noted that plaintiffs’

Daubert response had been received by the clerk’s office on December 12, after the

court-ordered deadline. Thus, the district court concluded that plaintiffs’ Daubert

response would have been untimely even if it had been filed. The district court

ordered plaintiffs to retrieve all copies of the unfiled Daubert response from the

clerk’s office. It also set a Rule 104 hearing on defendants’ Daubert motion for

January 17, 2005 and denied as moot plaintiffs’ motion for a Rule 104 hearing.

D.    Rule 104 Hearing

      At the Rule 104 hearing, plaintiffs called Nonnamaker to testify. While

Nonnamaker was answering questions about his work experience in the 1950s, he

paused long enough that the district court noted it on the record, as follows:

      Q.     In order to address the judge’s concern, Mr. Nonnamaker,
      would you be more specific as to the periods of time that you worked
      at Firestone from ‘51 to ‘56, if you could detail each position that you
      had and what you did in each position.
      A.     At 1951 to 1956, initially I was involved with the - -
                                       (Pause.)
      Q.     I’m sorry, did you say something?
      A.     No, I’m sorry, I did not.
             THE COURT:          The record should reflect that there’s a long
      pause. I’m not sure what’s happening.
             MR. CABEZAS: I don’t know what’s happening either,
      Judge.

      BY MR. CABEZAS:
      Q.  Are you okay, Mr. Nonnamaker?
      A.  Yes.

                                          7
       Q.      Do you understand my question?
       A.      I do.

Plaintiffs’ counsel then repeated his question, and Nonnamaker answered it.

Plaintiffs’ counsel posed another question about Nonnamaker’s employment in the

1950s. While answering, Nonnamaker again paused, prompting counsel to request

a brief recess. The district court granted the request, noting for the record that

“after questions are responded to in part, there’s a long pause.” After a seven

minute recess, plaintiffs’ counsel stated that plaintiffs were ready to proceed, and

Nonnamaker continued testifying until lunch without further incident.

       Nonnamaker testified that he had performed over 3,000 failure analyses of

tires. Nonnamaker stated that a “failure analysis” of a tire involved conducting a

“visual and tactile examination” of the tire under bright lights and then recording

all the significant conditions and markings that would indicate the reason for a

failure. Nonnamaker also testified that a steel belted radial tire experiences tread

belt separation because of “the absence of a nylon overlay to assist in protecting

against the sharp edges of the steel belt” and opined that the absence of a nylon

overlay or nylon cap plies was a defect in the design of McCool’s steel belted

radial tire.1 In forming this opinion, Nonnamaker testified that he relied upon his


       1
        Nonnamaker also explained that a nylon overlay or nylon ply is made up of individual
nylon cords that run around the tire over the top of the steel belts and under the tread. According
to Nonnamaker, the nylon overlay provides a transition between the stiff steel and the flexible

                                                 8
experience in examining tires and “the tests that have been conducted by various

companies that support that a nylon overlay improves the tire life.” However, the

tests to which Nonnamaker referred were not introduced into the record.

       During the hearing, defendants objected to Nonnamaker’s references to the

tests, arguing that they had not been disclosed in his Rule 26 report or produced

during his deposition. Plaintiffs’ counsel explained that the tests to which

Nonnamaker referred had been given to Nonnamaker in other litigation, were no

longer in his possession, and were the subject of confidentiality orders.

       After a lunch recess, plaintiffs’ counsel informed the district court that, after

speaking with Nonnamaker, both he and Nonnamaker had concerns about

Nonnamaker’s memory and his competency to testify, as follows:

              MR. CABEZAS: He has shared with me that he stopped
       taking new cases since June of last year, since June of 2005, and
       between then and now, this is the first time that he has testified in
       open court and he’s concerned that, you know, the stress related to
       that may have brought even more to light his concerns with his
       slowing down mentally, his ability to recall things, and I’m concerned
       with the competency of his testimony. So I would - - if you want me
       to elicit that information from him directly, I will, but that’s
       essentially what he shared with me, and I’m concerned about our - -
       my client’s rights going forward.
              THE COURT:          Well, Mr. Nonnamaker, you have heard the
       attorney summarize your feelings or thoughts. Do you concur with
       the statement he just made?


rubber at the edge of the steel belts, by “absorbing the transmission from the stiffness of the steel
to the rubber in which it’s encased.”

                                                  9
             THE WITNESS: I certainly do and I apologize.
             THE COURT:          No, you don’t have to apologize. All sorts
      of things happen in the course of human events and so I don’t want
      you to feel sorry. I appreciate you bringing it to the Court’s attention.
      In essence, are you concerned about your ability to be able to recall
      and give fair and accurate testimony about the events that you have
      previously testified about?
             THE WITNESS: Right. I found that it was a great surprise to
      me this morning when it occurred and I have no explanation except
      that I was just having problems recalling, which tended to smooth out
      some, but I’m still concerned, and concerned for the people that are
      involved, for my client that I’m working for, but primarily for the
      people that he represents.

Plaintiffs’ counsel asked for a continuance to permit Nonnamaker to seek medical

attention to determine if his ability to testify was impaired. The district court

concluded that the hearing should continue because Nonnamaker had indicated that

the memory problem had “smoothed out” as he continued testifying, as follows:

             THE COURT:         Well, I think we should continue with the
      testimony because as he stated, things appeared to smooth out, as you
      said, as he went along. Let’s just finish the testimony and then Mr.
      Nonnamaker can consult with any medical authorities that he desires
      and then we can decide where we are at that time. We only have, as
      you stated, about 30 more minutes of testimony and so there’s no need
      in suspending testimony at this time, frankly, based upon what I have
      observed.
             Have you had any difficulty prior to today?
             THE WITNESS: Nothing like this. It was so minor. It was
      one of the reasons for, in June, going ahead and deciding to not take
      any new cases, but I had no problems like this.
             THE COURT:         Well, you paused a bit early on, but as you
      continued testifying, I didn’t notice any hesitation. Were you
      experiencing something later on in your testimony?
             THE WITNESS: No, it came around but I was very concerned

                                           10
       about the initial problem and what was occurring there.
              THE COURT:          After the initial pauses that I made reference
       to on the record, did you experience difficulty after that point in time?
              THE WITNESS: No, it - - everything tended to smooth out.
              THE COURT:          Okay. All right. Well, let’s continue today
       and then he can consult with his physicians.

Nonnamaker then corrected one piece of his morning testimony that he said was

inaccurate and finished testifying.2

       During redirect, the district court allowed Nonnamaker as part of a proffer to

describe the tests he had relied upon in forming his expert opinion. In so doing,

Nonnamaker read directly from an affidavit he had prepared and which had been

attached to plaintiffs’ unfiled Daubert response, listing various tire industry testing,

internal memoranda addressing such testing and deposition testimony of tire

industry officials in other litigation discussing such testing.

       After Nonnamaker’s testimony concluded, plaintiffs’ counsel renewed his

motion for a continuance based on Nonnamaker’s inability to recall certain events.

The district court denied the motion, stating “frankly, I didn’t note any problem

with the issue that you’re raising. There may be other problems, but I’m not sure

that the methodology, which is the true measure of this proceeding, suffers at all,


       2
         Before lunch, Nonnamaker had testified that he had never seen a certain videotape
relating to testing of tires with and without nylon cap plies. After lunch, Nonnamaker testified
that he had seen the videotape in connection with another case and had recalled this fact during
cross-examination. The district court asked Nonnamaker whether he recalled mis-speaking at
any other time during his testimony and Nonnamaker responded that he did not.

                                                11
based on prior depositions, et cetera.”

      After hearing argument from the parties, the district court took defendants’

Daubert motion under advisement. In response to an inquiry from plaintiffs’

counsel regarding the Daubert response plaintiffs had attempted to file, the district

court indicated that it had held the Rule 104 hearing because plaintiffs had not filed

a Daubert response, as follows:

             MR. CABEZAS: . . . .
             And speaking of that, to the extent that [the district court grants
      defendants’ Daubert motion], and in order to preserve the record, I
      would like some guidance from the Court with respect to the Daubert
      response that Your Honor did not allow me to file.
             THE COURT:        Daubert response?
             MR. CABEZAS: I had prepared a Daubert response, I don’t
      know if Your Honor recalls.
             THE COURT:        That’s why we had the hearing.
             MR. CABEZAS: I’m sorry?
             THE COURT:        This is why we had the hearing.
             MR. CABEZAS: I understand that.
             THE COURT:        So that you could introduce everything that
      you wanted to introduce on the subject. That’s why we’ve been here
      all day.

E.    Daubert Ruling and Summary Judgment

      Following the hearing, plaintiffs filed an emergency motion for leave to

substitute their expert witness and to continue the trial. Plaintiffs argued that,

based on his memory lapses during the Rule 104 hearing, Nonnamaker was not

competent to testify. On February 1, 2006, the district court denied the emergency



                                           12
motion, noting that the case had been pending for nearly four years and was two

weeks away from trial and that plaintiffs had an adequate opportunity to develop

Nonnamaker’s testimony and provide support for his opinion.

      On the same day, the district court granted defendants’ Daubert motion. The

district court found that Nonnamaker was not qualified as an expert on the subject

matter of nylon cap ply tires. In addition, the district court concluded that the

methodology Nonnamaker used to reach his conclusions was not sufficiently

reliable under the Daubert factors and that Nonnamaker’s testimony would not

assist the jury. The district court also noted, “Mr. Nonnamaker claims that he has

seen test results that indicate support for his opinion, but these test results have not

been produced or offered into evidence in this case.”

      Defendants renewed their motion for summary judgment, arguing that

plaintiffs could not prove their defective design claim without an expert witness.

Plaintiffs filed a motion for a continuance pursuant to Federal Rule of Civil

Procedure 56(f) and requested time to find a substitute expert because Nonnamaker

was incompetent to testify. The district court denied plaintiffs’ Rule 56(f) motion

and granted summary judgment in favor of defendants. In so doing, the district

court stated that plaintiffs’ Rule 56(f) motion was a “conspicuous attempt to move

for reconsideration of the Court’s February 1, 2006 Order denying Plaintiffs’



                                           13
Emergency Motion for Continuance of Trial.” The district court concluded that

replacing an expert that already has been excluded on Daubert grounds was not a

valid basis for granting a Rule 56(f) continuance. The district court clarified that it

had not excluded Nonnamaker because of any memory deficiencies he exhibited

during the hearing, but because he was not qualified as an expert and his opinion

was not reliable, as follows:

      Contrary to Plaintiffs’ assertion, this Court excluded Mr.
      Nonnamaker’s opinion testimony because, inter alia: 1) he lacks the
      training, education, or experience to offer testimony on the nylon cap
      ply issue; 2) he has never been involved in the design or manufacture
      of any steel-belted radial tire; 3) the methodology by which Mr.
      Nonnamaker reached his conclusions is not sufficiently reliable as
      determined by the sort of inquiry mandated by Daubert; and 4) Mr.
      Nonnamaker’s theory concerning the nylon cap ply defect has not
      been tested, and has not been subject to peer review and publication.
      Mr. Nonnamaker was not excluded due to some “mental”
      incompetence.

The district court concluded that plaintiffs should not be permitted to shore up their

case by finding a second expert before the district court ruled on defendants’

summary judgment motion.

F.    Motion to Alter or Amend Judgment

      On February 24, 2006, plaintiffs filed a motion to alter or amend the

judgment based on Nonnamaker’s incompetency. Affidavits attached to the

motion indicated that Nonnamaker recently had been diagnosed with Parkinson’s



                                           14
disease and dementia. Plaintiffs also argued that the district court erred when it

refused to allow them to file their untimely Daubert response.

      On March 30, 2006, the district court denied plaintiffs’ motion to alter or

amend the judgment. The district court again rejected plaintiffs’ argument that it

had based its Daubert ruling on Nonnamaker’s incompetent testimony and noted

that plaintiffs had ignored Nonnamaker’s deficiencies apparent in his expert

witness report and deposition testimony and the lack of other evidentiary support

for Nonnamaker’s expert opinion. The district court again clarified the basis for its

Daubert ruling, citing each of the reasons for its decision to exclude Nonnamaker,

none of which implicated Nonnamaker’s newly discovered mental condition. The

district court also emphasized that it had not relied solely upon Nonnamaker’s

hearing testimony in reaching its decision, but also had considered the defendants’

motion to exclude and Nonnamaker’s prior deposition testimony, which was given

when Nonnamaker’s competence was not at issue. The district court concluded

that “[b]ecause [Nonnamaker] was excluded on Daubert grounds based on

Defendant’s motion and [Nonnamaker’s] prior deposition testimony, he would not

have been permitted to testify at trial. As such, his present or future mental

condition is immaterial.”

      With regard to the unfiled Daubert response, the district court reiterated that



                                          15
the written response was not considered because it was untimely. However, the

district court explained, plaintiffs had been given an opportunity to present their

response at the Rule 104 hearing.

       Plaintiffs filed this appeal.

                                   II. DISCUSSION

A.     Requests for Continuance

       On appeal, plaintiffs argue that the district court abused its discretion when it

denied their requests for a continuance and to substitute their expert witness, who

was incompetent. The “denial of a continuance is within the broad discretion of

the district court and will not be overturned unless arbitrary or unreasonable.”

Quiet Tech. DC-8, Inc. v. Hurel-Dubois UK Ltd., 326 F.3d 1333, 1351 (11th Cir

2003) (quotation marks omitted). We consider the following four factors in

reviewing a district court’s denial of a request for a continuance: “(1) the moving

party’s diligence in its efforts to ready its case prior to the date set for hearing; (2)

the likelihood that the need for a continuance would have been remedied had the

continuance been granted; (3) the extent to which granting the continuance would

have inconvenienced the court and the opposing party; and (4) the extent to which

the moving party might have suffered harm as a result of the district court’s

denial.” Rink v. Cheminova, Inc., 400 F.3d 1286, 1296 (11th Cir.), cert. denied,



                                            16
___ U.S. ___, 126 S. Ct. 419 (2005).

      Here, factors one, three and four weigh heavily in favor of the defendants

and show that the district court did not abuse its discretion in denying plaintiffs’

request for a continuance either before or after the Daubert ruling. The first factor

– the moving party’s diligence in preparing for the hearing – appears at first blush

to militate in favor of plaintiffs. As plaintiffs emphasize, they appeared at the Rule

104 hearing with Nonnamaker, ready to proceed. At the time, plaintiffs were

unaware of Nonnamaker’s memory problems, and they requested a continuance as

soon as the memory problems became apparent during the hearing.

      However, as the district court explained, plaintiffs’ lack of diligence was not

in failing to appear at the hearing, but in failing to prepare adequately for the

Daubert challenge by producing evidence indicating Nonnamaker’s expert opinion

was reliable. It is undisputed that plaintiffs failed to produce such supporting

evidence as part of Nonnamaker’s Rule 26 report or in response to the subpoena

duces tecum attached to the notice of Nonnamaker’s deposition. Nor did plaintiffs

attempt to introduce such evidence at the Rule 104 hearing.

      Indeed, the only support plaintiffs provided for Nonnamaker’s expert

opinion was Nonnamaker’s own testimony that other expert witnesses shared his

opinion and that he either was aware of or had reviewed in the past test data or



                                           17
internal memoranda from tire companies discussing test data that he contended

supported his views. However, none of the test data or internal memoranda were

produced during discovery or submitted to the district court during the hearing.

The absence of any documentary evidence, such as peer-reviewed articles or

scientific studies or testing, is a particularly glaring omission given that

Nonnamaker conducted no studies or testing of his own and had never published

his nylon cap ply theory for peer review. In essence, although plaintiffs appeared

at the Rule 104 hearing, their entire defense to defendants’ Daubert challenge

rested on Nonnamaker’s seemingly conclusory opinion. This is not the sort of

diligent preparation one would expect for a Daubert challenge.

      As for the third factor, granting plaintiffs’ request for a continuance would

have greatly inconvenienced both the district court and the defendants. At the time

of the Rule 104 hearing, the case had been pending for four years. Defendants had

deposed Nonnamaker and prepared a Daubert challenge based on Nonnamaker’s

deposition and his Rule 26 report. Discovery had closed, and trial was set to begin

on February 6, just three weeks later. Granting plaintiffs’ request would have

postponed not only a ruling on the Daubert motion, but also the trial. Plaintiffs

ultimately sought to designate a substitute expert based on Nonnamaker’s

diagnoses. As plaintiffs admit, Defendants would have had to invest more time



                                           18
and effort to determine the reliability of this newly designated expert, reviewing a

second Rule 26 report, deposing the new expert, and perhaps having to file and

defend a second Daubert motion. Thus, trial would have been postponed for a

significant period of time.

      The fourth factor also weighs in defendants’ favor because plaintiffs were

not seriously prejudiced by the district court’s denial. Despite plaintiffs’ insistence

that Nonnamaker was incompetent during the Rule 104 hearing and could not

properly present the foundation for his opinion, plaintiffs do not identify any

material defects in Nonnamaker’s Rule 104 hearing testimony resulting from his

memory loss. Plaintiffs’ only example is Nonnamaker’s testimony covering points

raised in his affidavit stricken as part of the untimely Daubert response. Plaintiffs

contend that Nonnamaker could not remember the details of the issues addressed in

his affidavit, which included descriptions of the various testing and internal

memoranda Nonnamaker claimed to have reviewed in the past. However, as

plaintiffs concede, the district court permitted Nonnamaker to read directly from

his stricken affidavit during the hearing and Nonnamaker was asked follow-up

questions by both the district court and plaintiffs’ counsel.

      The problem with plaintiffs’ Daubert evidence is not that Nonnamaker had

trouble at the hearing recalling the testing and internal memoranda he relied upon



                                           19
in formulating his expert opinion. Rather, the problem for plaintiffs is that they

failed to produce the testing and internal memoranda for the district court to

evaluate as part of its Daubert analysis. Plaintiffs in effect asked the district court

to take Nonnamaker’s word that the testing was both scientifically sound and

supported his opinion.

      The district court excluded Nonnamaker’s testimony on the merits, on

grounds unconnected to his memory problems during the Rule 104 hearing, and

plaintiffs do not challenge the merits of the district court’s Daubert ruling on

appeal. In short, plaintiffs’ case came undone long before the Rule 104 hearing,

when plaintiffs chose not to support Nonnamaker’s opinion with evidence

indicating that it was reliable under the Daubert factors.

      We recognize that the second factor – plaintiffs’ diligence – appears to

weigh in favor of plaintiffs because a continuance of the Rule 104 hearing would

have given plaintiffs time to determine the cause of Nonnamaker’s memory

problems. However, a continuance would not have given plaintiffs time to address

the reliability concerns identified by defendants in their Daubert motion and

focused on by the district court in its Daubert ruling. These concerns were not

related to Nonnamaker’s memory lapses during the hearing, but instead related to

the lack of any scientific support for Nonnamaker’s opinion, such as studies,



                                           20
testing or peer-reviewed articles. Any shoring up of Nonnamaker’s expert opinion

with scientific studies, testing data, et cetera, should have been done in the Rule 26

report or during Nonnamaker’s deposition. At a minimum, plaintiffs should have

attempted to introduce such evidence during the Rule 104 hearing. They did not.

Thus, even if the second factor weighed in favor of plaintiffs prior to the district

court’s Daubert ruling, it did not after Nonnamaker was excluded on the merits.

Under all the circumstances of this case, we cannot say the district court’s denial of

a continuance was arbitrary or unreasonable.

B.    Daubert Ruling

      Plaintiffs also argue that the district court erred in granting defendants’

Daubert motion. However, plaintiffs do not challenge the merits of the district

court’s Daubert ruling. Instead, plaintiffs contend that the district court should not

have ruled on the Daubert motion because, due to Nonnamaker’s alleged

incompetence during the hearing, plaintiffs were unable to defend their position

and the district court “did not have competent evidence from Plaintiffs to balance

against Firestone’s position.” This argument is merely a reformulation of

plaintiffs’ argument that they should have been given a continuance and is rejected

for the reasons already discussed.

C.    Unfiled Daubert Response



                                           21
       Plaintiffs contend that the district court abused its discretion when it refused

to permit them to file their untimely Daubert response. According to plaintiffs,

their failure to file the Daubert response on the court-ordered deadline was

excusable neglect under Federal Rules of Civil Procedure 6(b) and 60(b).3

Although these rules give a district court the discretion to accept an untimely filing

when excusable neglect is shown, they do not require a district court to do so.

Therefore, even assuming arguendo that plaintiffs’ reason for missing the filing

deadline constituted excusable neglect, we cannot say the district court abused its

discretion in refusing to permit plaintiffs to file their untimely Daubert response.

See Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 896 & n.5, 110 S. Ct. 3177, 3192

& n.5 (1990) (explaining that Rule 6(b) confers discretion on the district court to

accept untimely filings, but does not compel the district court to receive them).

       AFFIRMED.

       3
        Rule 6(b) states in relevant part:
       When by these rules or by a notice given thereunder or by order of court an act is
       required or allowed to be done at or within a specified time, the court for cause
       shown may at any time in its discretion (1) with or without motion or notice order
       the period enlarged if request therefore is made before the expiration of the period
       originally prescribed or as extended by a previous order, or (2) upon motion made
       after the expiration of the specified period permit the act to be done where the failure
       to act was the result of excusable neglect . . . .
Fed. R. Civ. P. 6(b) (emphasis added).
       Rule 60(b) states in relevant part:
       On motion and upon such terms as are just, the court may relieve a party or a party’s
       legal representative from a final judgment, order, or proceeding for the following
       reasons: (1) mistake, inadvertence, surprise, or excusable neglect . . . .
Fed. R. Civ. P. 60(b)(1) (emphasis added).

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