                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                       UNITED STATES CO URT O F APPEALS
                                                                         July 18, 2007
                             FO R TH E TENTH CIRCUIT                  Elisabeth A. Shumaker
                                                                          Clerk of Court

    LAURA AGEE, surviving spouse and
    personal representative of
    the Estate of Rick Agee,

              Plaintiff-Appellant,                         No. 05-6002
                                                    (D.C. No. CV -03-787-HE)
     v.                                                   (W .D. Okla.)

    PURD UE PH ARM ACEUTICA LS,
    L.P.,

              Defendant-Appellee.


                              OR D ER AND JUDGM ENT *


Before BR ISC OE, SE YM OU R, and A ND ER SO N, Circuit Judges.




          Plaintiff Laura Agee appeals from the district court’s order excluding the

proposed testimony of her expert witness and granting summary judgment in




*
       After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and
collateral estoppel. It may be cited, however, for its persuasive value consistent
with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
favor of defendant Purdue Pharmaceuticals L.P. (Purdue). 1 W e have jurisdiction

under 28 U.S.C. § 1291 and affirm.

       Following back surgery, M rs. Agee’s husband Rick Agee, was prescribed

O xyContin for pain relief. Three days later, he was found dead by his wife. An

autopsy revealed toxic levels of oxycodone (the active ingredient in OxyContin)

in his bloodstream and authorities concluded that he died of accidental, “acute

oxycodone toxicity.”   Aplee. App. Vol. 1 at 46. In her lawsuit against Purdue

(the manufacturer), M rs. Agee claimed that because her husband took the

medication as prescribed, his death w as the result of a defect in the drug and/or a

failure to warn.

      To prove her claims, M rs. Agee identified James O ’Donnell as an expert

witness. The essence of his proposed testimony was that an accumulation of

oxycodone caused M r. Agee’s death. Purdue filed a motion in limine to exclude

the proposed testimony and for summary judgment. Following a Daubert hearing,

the trial court granted the motions and this appeal followed.

      On appeal,

      we review de novo the question of whether the district court applied
      the proper standard and actually performed its gatekeeper role in the
      first instance. W e then review the trial court’s actual application of
      the standard in deciding whether to admit or exclude an expert
      testimony for abuse of discretion. . . . Accordingly, we will not
      disturb the district court’s ruling unless it is arbitrary, capricious,

1
      M rs. Agee agrees that if the trial court’s order excluding the expert’s
proposed testimony was correct, summary judgment w as proper.

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      whimsical or manifestly unreasonable, or when we are convinced that
      the district court made a clear error of judgment or exceeded the
      bounds of permissible choice in the circumstances.

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

and quotations omitted).

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

decision in Daubert v. M errell Dow Pharm., Inc., 509 U.S. 579 (1993) and sets

forth the standard that expert testimony must meet to be admissible in evidence.

As part of its gate keeping function, and in addition to determining whether the

proposed expert is qualified to offer an opinion, the trial court must also

determine whether “(1) the testimony is based upon sufficient facts or data,

(2) the testimony is the product of reliable principles and methods, and (3) the

witness has applied the principles and methods reliably to the facts of the case.”

Fed. R. Evid. 702.

      In determining the reliability of expert testimony, there are several

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

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

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

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

of the theory or technique. Daubert, 328 F.3d at 593-94. Daubert itself,

however, recognizes these factors are not definitive, and a trial court has broad

discretion to consider other factors in determining reliability. Id. at 594-95.

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      W e have thoroughly reviewed the record and the parties’ briefs. Assuming

as true all the facts proffered by M rs. Agee, we affirm substantially for the

reasons given by the district court. The record reflects that James O’Donnell used

a computer program to determine the biological parameters a hypothetical person

would need to have to reach the toxic levels of oxycodone found in M r. Agee’s

bloodstream, assuming he took the medication as prescribed. As the trial court

found, there was no scientific basis for Dr. O’Donnell’s conclusion that M r. Agee

died from an accumulation of oxycodone, instead of an overdose, because he was

unaware of any person with the physiological attributes produced by his computer

modeling. This finding, which renders the proposed expert testimony unreliable,

is supported by record.

      W e A FFIR M .

                                                     Entered for the Court


                                                     Stephanie K. Seymour
                                                     Circuit Judge




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