                                                                                FILED
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                          March 29, 2013
                                   TENTH CIRCUIT
                                                                        Elisabeth A. Shumaker
                                                                            Clerk of Court


 MELINDA HO,

        Plaintiff–Appellant,
                                                            No. 11-3334
 v.                                                (D.C. No. 6:08-CV-01282-JTM)
                                                              (D. Kan.)
 MICHELIN NORTH AMERICA, INC.,

        Defendant–Appellee.


                               ORDER AND JUDGMENT*


Before LUCERO, HARTZ, and O’BRIEN, Circuit Judges.


      Melinda Ho appeals a district court order excluding proposed tire expert testimony

and granting summary judgment in favor of Michelin North America, Inc. (“Michelin”).

Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

                                            I

      In 2007, Ho was injured in a car accident. A third party, Linda Lange, was driving



      * This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. This court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 32.1.
on the highway when her front left tire suffered a belt and tread detachment. Lange’s

vehicle veered left, crossed into oncoming traffic, and struck Ho’s vehicle head on. Ho

filed a products liability action against Michelin, the manufacturer of Lange’s tire,

alleging defective design and manufacturing, failure to warn, breach of warranty, and

negligence.

       Ho designated two experts to testify regarding the cause of the tire failure. Patrick

Cassidy, a Ph.D. chemist, testified that age is a “major issue” in tire failures and that age

“ha[d] an effect in this case as to the cause of failure.” However, Cassidy admitted that

there were several potential causes of tire failure, and that he “would not testify that this

tire failed because of age.” Cassidy also stated that, based on his investigation, there was

“no scientific evidence” that the tire at issue had a manufacturing defect. With respect to

design defect, Cassidy testified that a tire without a nylon cap ply would be defectively

designed, but conceded that he could not say whether a nylon cap ply would have made a

difference in this particular detachment. Finally, Cassidy stated that he was not a

warning expert and could offer no expert insights into warning claims.

       Ho also offered William Woehrle as an expert. Woehrle has a B.S. in Physics and

has worked in the tire industry for nearly forty years. He also has thirty years of

experience teaching accident investigation courses. Woehrle physically examined the tire

at issue and opined that the failure was the result of “insufficient fatigue endurance

performance,” which was due primarily to two root causes: improper belt step-offs and a

severe offset, or “dog ear,” on the tire. Inadequate adhesion, excessive age, and the
                                             -2-
absence of a nylon cap ply were also “contributing factors” according to Woehrle.

Woehrle rejected the suggestion that over-deflection (caused by overloading or under-

inflation) or impact damage caused the tire failure.

       In his deposition, Woehrle admitted that there is a tolerance for some step-off

variation. Woehrle did not know if the tire’s belt placement issues fell within Michelin’s

specifications. He also conceded that the peer-reviewed literature suggests that step-offs

and dog ears do not cause belt separations, and he was unable to cite any peer-reviewed

literature supporting his contrary theory. With respect to his belief that the tire had

inadequate adhesion, Woehrle rested his conclusion on the presence of brassy colored

wires. However, Woehrle admitted that the presence of brassy wires does not necessarily

suggest a defect. He also relied on a single publication to draw this causal connection,

issued by a tire expert with significant reputation issues following the entry of sanctions

in another tire case.

       Woehrle also acknowledged that his positions on over-deflection and road

impacts—that they do not cause belt detachments—were contrary to the prevailing view

in the scientific community. For example, Cassidy, the plaintiff’s witness, testified that

both issues could cause belt detachment. After being deposed, Woehrle conducted “drop

testing” on a single tire to support his theory that impact does not cause tread detachment.

A background document describing the development of this test states that a different

type of test provides more consistent results.

       With respect to design defect, Woehrle stated that the absence of a nylon cap ply
                                             -3-
was the only design defect he claimed. He admitted that he had never designed a tire that

was produced, and was not qualified to act as a tire designer. Woehrle later clarified that

he did not claim that the absence of a nylon cap ply was a defect, but rather that this

feature would have been beneficial. He noted that nylon cap plies were one of several

methods to alleviate stress at belt edges, but that nylon cap plies had some disadvantages.

Finally, as to warning defect, Woehrle admitted that he was not a warning expert and that

he did not think age was an “applicable” issue in this case.

       Michelin filed a motion for summary judgment in February 2011. In the motion,

Michelin argued that Ho’s proffered expert testimony would be inadmissible, referencing

a forthcoming motion to exclude that testimony. Michelin filed its motion to exclude

Woehrle’s testimony the following month. The district court granted both motions in a

37-page Memorandum and Order. After unsuccessfully seeking reconsideration, Ho filed

a timely notice of appeal.

                                             II

       Under Federal Rule of Evidence 702, district courts must assess whether a witness

is qualified “by knowledge, skill, experience, training, or education” to offer expert

testimony. Id. As the Supreme Court explained in Daubert v. Merrell Dow

Pharmaceuticals, 509 U.S. 579 (1993), trial courts act in a “gatekeeping role” designed to

ensure that expert testimony “is not only relevant, but reliable.” Id. at 589, 597. The

Court identified four non-exhaustive factors as useful in conducting this analysis:

       (1) whether the opinion at issue is susceptible to testing and has been
                                             -4-
       subjected to such testing; (2) whether the opinion has been subjected to
       peer review; (3) whether there is a known or potential rate of error
       associated with the methodology used and whether there are standards
       controlling the technique’s operation; and (4) whether the theory has been
       accepted in the scientific community.

Dodge v. Cotter Corp., 328 F.3d 1212, 1222 (10th Cir. 2003) (citing Daubert, 509 U.S. at

593-94).

       In reviewing a district court’s decision to exclude expert testimony, this court

conducts a two-part inquiry. First, “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.” Dodge, 328 F.3d at 1223. “We then review the trial court’s actual

application of the standard in deciding whether to admit or exclude an expert’s testimony

for abuse of discretion.” Id.

                                              A

       Ho argues that the district court committed several legal or procedural errors in

conducting the Daubert analysis. We reject each of these assertions.

       First, Ho contends that the district court impermissibly treated the four Daubert

factors as exclusive in concluding that Woehrle’s experience could not qualify him as an

expert. It is true that the four Daubert factors “do not constitute a definitive checklist or

test.” Kumho Tire Co. v. Carmichael, 526 U.S. 137, 150 (1999) (quotation omitted).

Expert testimony need not “be supported by the four factors . . . from Daubert” because

“specialized knowledge can be acquired through experience and training.” United States

v. Garza, 566 F.3d 1194, 1199 (10th Cir. 2009) (quotations omitted). Trial judges have
                                              -5-
“considerable leeway in deciding in a particular case how to go about determining

whether particular expert testimony is reliable.” Kumho Tire, 526 U.S. at 152.

       We disagree with Ho’s characterization of the district court’s order. The court

explicitly noted that the Daubert factors are non-exhaustive, and that “experience may

qualify an expert to render an opinion under Rule 702.” However, the court concluded

that Ho failed to tie Woehrle’s specific, testable opinions to anything other than

“generalized experience,” holding that “proper fulfillment of the court’s gatekeeping duty

requires more than passing along the opinion of a generally qualified expert merely

because of his credentials.” The district court appropriately considered experience along

with the other Daubert factors, but held that Ho did not explain how Woehrle’s

experience rendered his particular opinions in this case reliable. See Kumho Tire, 526

U.S. at 150-51 (holding that the Daubert factors may apply to “skill- or experience-based

observation” in addition to testimony based on “scientific principles” (quotation

omitted)). As in Kumho Tire, the district court “ultimately based its decision upon [an

expert’s] failure to satisfy either Daubert’s factors or any other set of reasonable

reliability criteria.” Kumho Tire, 526 U.S. at 158. The district court properly applied

Rule 702 in so doing.

       Second, Ho argues that the district court impermissibly focused on the reliability

of Woehrle’s conclusions rather than his methods. “[A] trial court’s focus generally

should not be upon the precise conclusions reached by the expert, but on the

methodology employed in reaching those conclusions.” Bitler v. A.O. Smith Corp., 400
                                             -6-
F.3d 1227, 1233 (10th Cir. 2004). Ho cites several examples of the district court

referring to Woehrle’s opinions or conclusions as unreliable. However, we read the

district court’s order as holding Woehrle’s conclusions were not reliable because they

were not supported by reliable methodology. “Although it is not always a

straightforward exercise to disaggregate method and conclusion, when the conclusion

simply does not follow from the data, a district court is free to determine that an

impermissible analytical gap exists between premises and conclusion.” Id. The district

court in this case permissibly ruled that there was “simply too great an analytical gap

between the data and the opinion proffered.” Norris v. Baxter Healthcare Corp., 397 F.3d

878, 886 (10th Cir. 2005) (quotation omitted).

       Third, Ho claims that the district court failed to make detailed findings regarding

Woehrle’s methodology. We have held that a district court must create “a sufficiently

developed record in order to allow a determination of whether the district court properly

applied the relevant law.” Dodge, 328 F.3d at 1223 (quotation omitted). Without such a

record, “it is impossible on appeal to determine whether the district court carefully and

meticulously reviewed the proffered scientific evidence or simply made an off-the-cuff

decision to admit the expert testimony.” Goebel v. Denver & Rio Grande W. R.R., 215

F.3d 1083, 1088 (10th Cir. 2000) (quotation and alteration omitted). Ho’s assertion that

the district court failed to make specific findings rests on the faulty premise that the court

reviewed only Woehrle’s conclusions rather than his methods. As noted supra, the

district court permissibly held that Woehrle did not tie his general experience in the tire
                                             -7-
industry to the specific opinions he advanced in this case. It did so in a thorough and

well-reasoned memorandum and order. We have no trouble conducting appellate review

of the court’s holding.

       Fourth, Ho contends the district court erred by issuing its Daubert ruling without

conducting a hearing. She relies on our statement in United States v. Nacchio, 555 F.3d

1234 (10th Cir. 2009) (en banc), that “it would be an abuse of discretion for the district

court to unreasonably limit the evidence upon which it based its Daubert decision.” Id. at

1250. From this statement, Ho claims that a Daubert hearing is required whenever

requested. Although we have held that a district court’s limitation of Daubert evidence

can sometimes “exceed the bounds of permissible choice,” our precedent is clear that “a

district court has discretion to limit the information upon which it will decide the Daubert

issue.” Dodge, 328 F.3d at 1228-29; see also Goebel, 215 F.3d at 1087 (noting that a

district court is “granted great latitude in deciding whether to hold a formal hearing”

(quotation omitted)). “[D]istrict courts are authorized by Fed. R. Civ. P. 78 to provide by

local rule for disposition of most motions without oral argument . . . .” Riddle v.

Mondragon, 83 F.3d 1197, 1208 (10th Cir 1996). The District of Kansas has such a local

rule. See D. Kan. Local R. 7.2. In this case, the district court had before it several expert

reports, lengthy deposition transcripts of the experts at issue, and other evidence to

accompany the parties’ arguments. We conclude the court permissibly exercised its

discretion in ruling without a formal hearing.


                                             -8-
                                              B

       In addition to her procedural arguments, Ho claims that the district court abused its

discretion in various and sundry manners by excluding Woehrle’s testimony. We hold

that the district court’s decision fell within the bounds of permissible choice.

       Ho first claims that the district court abused its discretion by holding that Woehrle

could not establish reliability based on his experience. As discussed supra, we reject this

characterization of the district court’s order. The court clearly noted that “experience

may qualify an expert to render an opinion under Rule 702,” but held that Woehrle did

not tie his opinions to his experience in a meaningful way.

       We agree with the district court’s characterization of Woehrle’s testimony. For

example, when asked why he believed that a dog ear of at least a tenth of an inch is

significant, Woehrle responded: “My experience at Uniroyal together with other cases

that I’d worked on where indeed I’ve been able to – I’ve been able to derive a cause-

effect relationship between dog-ears and root causes of belt separation failures.”

Similarly, when asked to support his claim that step-offs can cause belt separation,

Woehrle responded that he was “not aware of any publicly published information that

supports my claim. I only base it on my experience at Uniroyal and what we dealt with.”

These responses are typical of the ipse dixit nature of Woehrle’s testimony.

       We have no quarrel with the proposition that experience may qualify an expert.

However, the district court was correct to hold that credentials alone do not suffice. The

expert at issue in Kumho Tire, for example, was subject to exclusion despite his
                                             -9-
impeccable qualifications because his methodology was not reliable. 526 U.S. at 153.

Ho quotes Bitler, a case in which we held that a fire investigator’s methodology was “not

susceptible to testing or peer review.” 400 F.3d at 1235. But the same is not true of tire-

failure investigation. The question of whether dog ears or step-offs lead to belt

separation is an empirical one that, as Woehrle acknowledges, has been the subject of

published experiments. Yet Woehrle simply referenced his experience in general rather

than providing any meaningful explanation as to how he reached his conclusions.

Further, as Woehrle acknowledged, the peer-reviewed literature suggests the opposite of

his opinions. Given the yawning “analytical gap . . . between premises and conclusion,”

id. at 1233, we conclude that the district court permissibly rejected Woehrle’s reliance on

generalized experience.

       Second, Ho argues that the district court improperly rejected Woehrle’s design

defect testimony on the ground that Woehrle was not a tire designer. “[A]s long as an

expert stays within the reasonable confines of his subject area, . . . a lack of specialization

does not affect the admissibility of [the expert] opinion, but only its weight.” Ralston v.

Smith & Nephew Richards, Inc., 275 F.3d 965, 970 (10th Cir. 2001) (quotation omitted).

Ho argues that tire design was within the reasonable confines of Woehrle’s expertise in

tire-failure analysis. However, we once again reject Ho’s characterization of the district

court order.

       Although the district court noted Woehrle’s concession that he was not qualified to

design a tire, this was not the sole basis of its ruling. It further relied in part on the fact
                                              -10-
that Woehrle’s design theory has been ruled inadmissible in other cases. See Smith v.

Goodyear Tire & Rubber Co., 495 F.3d 224, 227 (5th Cir. 2007); see also Cruz v.

Bridgestone/Firestone N. Am. Tire, LLC, 388 F. App’x 803, 807 (10th Cir. 2010)

(unpublished). But see Mascarenas v. Cooper Tire & Rubber Co., 643 F. Supp. 2d 1363,

1371-73 (S.D. Ga. 2009) (holding defect theory regarding nylon cap plies admissible).

The court also held that “Ho provides no rejoinder to Michelin’s specific challenges as to

Woehrle’s expertise as to her claims of . . . design defect.” It ultimately concluded that

Woehrle’s opinion did not “rest on any attempt to rationally balance” the advantages and

disadvantages of a nylon cap ply.

       Ho bore the burden of establishing that Woehrle’s design defect opinion would be

admissible under Rule 702. See Nacchio, 555 F.3d at 1244. Yet, as the district court

noted, she failed to explain how Woehrle’s general experience in the tire industry

qualified him to opine on design issues in both her response to Michelin’s motion for

summary judgment and her response to Michelin’s Daubert motion. The same is true on

appeal. Ho simply points to Woehrle’s lengthy experience in the tire industry without

explaining how that experience supports his opinion that the lack of a nylon cap ply

constituted a design defect. Experience is not necessarily a password to admissibility,

and neither the district court nor this court will connect the dots on behalf of a litigant.

Cf. Bragdon v. Abbott, 524 U.S. 624, 653 (1998) (noting that expert testimony “must

have a traceable, analytical basis”). The fact that Woehrle was not qualified to design

tires was but one of several factors that led the district court to exclude his design defect
                                             -11-
opinion as unsupported. We discern no abuse of discretion in the court’s reasoning.

       Third, Ho contends the district court erred in ruling that Woehrle was not qualified

to provide opinion testimony regarding defective warning. Ho appears to argue that

Woehrle’s testimony should have been admitted to bolster her contention that Michelin

was liable for a complete failure to warn consumers of the connection between tire age

and structural integrity. In his testimony, Woehrle opined that the tire industry in general

does a poor job of communicating the effects of tire age. However, Woehrle also

testified that he did not consider “age to be applicable” to the tire failure at issue, and that

he was “not offering opinions in this case concerning warnings or the effectiveness of

warnings.” We conclude that any claimed error would be harmless under these

circumstances. Cf. United States v. Lewis, 240 F.3d 866, 869 (10th Cir. 2001) (noting

that exclusion of expert testimony is subject to harmless error analysis).

       In Ho’s fourth substantive attack on the district court’s decision, she argues that

the court erred in excluding the results of Woehrle’s impact testing of a single tire. The

district court provided several reasons for rejecting this evidence: drop tests are less

reliable than pendulum tests according to the document upon which Woehrle relied; the

test lacked a measured error rate; Woehrle’s opinion was not supported by peer-reviewed

evidence or even extensive testing; and Woerhle’s claim that impacts do not cause belt

detachment is contrary to the generally accepted engineering literature. Each of these

factors was permissibly considered. See Dodge, 328 F.3d at 1222. And the court’s

desire for rigorous testing was appropriate given that Woehrle sought to challenge the
                                             -12-
scientific consensus. See Bitler, 400 F.3d at 1235-36 (“When an expert proposes a theory

that modifies otherwise well-established knowledge about regularly occurring

phenomenon, . . . we would expect the importance of testing as a factor in determining

reliability to be at its highest.”). We hold that the district court’s decision to exclude

Woehrle’s drop testing fell within its discretion.

       Finally, Ho argues that the district court’s ruling was flawed because tactile and

visual inspection is an acceptable methodology. She relies on Kumho Tire, in which the

Court stated that this methodology is well-recognized among tire experts. See 526 U.S.

at 156. However, as in Kumho Tire, “the specific issue before the court was not the

reasonableness in general of a tire expert’s use of a visual and tactile inspection.” Id. at

153 (emphasis omitted). Instead the question presented to the district court “was the

reasonableness of using such an approach, along with [the expert’s] particular method of

analyzing the data thereby obtained, to draw a conclusion regarding the particular matter

to which the expert testimony was directly relevant.” Id. at 154 (emphasis omitted). The

district court did not hold that tactile and visual inspection was problematic. Instead, it

concluded that “too great an analytical gap,” Norris, 397 F.3d at 886, existed between

Woehrle’s unsupported theories regarding potential causes of belt separation and his

underlying data. We affirm that conclusion.

                                              III

       Ho also argues that the district court erred in granting summary judgment

following the exclusion of Woehrle’s proposed testimony. We review de novo a district
                                             -13-
court’s grant of summary judgment. Hobbs ex rel. Hobbs v. Zenderman, 579 F.3d 1171,

1179 (10th Cir. 2009). Summary judgment is proper only if, viewing the evidence in the

light most favorable to the non-moving party, the movant is entitled to judgment as a

matter of law. Id.

      Having concluded that Woehrle’s proposed testimony was properly excluded,

Ho’s claim that the Daubert ruling tainted the summary judgment ruling necessarily fails.

But Ho advances four additional arguments that summary judgment was improper even

without Woehrle’s testimony.

      First, Ho claims that the district court erred by allowing Michelin to file a

summary judgment brief that referenced a forthcoming Daubert motion. Based on the

ordering of these motions, Ho contends she was deprived the right to respond adequately

to the summary judgment motion. Under Federal Rule of Civil Procedure 56, a party

must “be given notice and a reasonable opportunity to respond to the movant’s summary

judgment materials.” Beaird v. Seagate Tech., Inc., 145 F.3d 1159, 1164 (10th Cir.

1998). Ho was given that opportunity here; she filed complete responses to Michelin’s

motion for summary judgment and its Daubert motion. The order of Michelin’s motions

was consistent with the applicable scheduling order, to which Ho did not object. She

now argues that Michelin’s summary judgment reply brief unfairly incorporated its

Daubert brief, but we do not see any new line of argument injected at the reply stage.

Accordingly, we deny relief on this issue.

      Second, Ho argues the district court erred in ruling that her products liability claim
                                             -14-
required expert testimony. She cites a District of Kansas case explaining that “the

elements of a product liability claim may be proven inferentially, by either direct or

circumstantial evidence.” Samarah v. Danek Med., Inc., 70 F. Supp. 2d 1196, 1202 (D.

Kan. 1999) (quotation omitted). “If plaintiff seeks to prove his claim via circumstantial

evidence, that evidence must tend to negate other reasonable causes, or there must be an

expert opinion that the product was defective.” Id. (quotation omitted).

       Although Samarah accurately describes the general rule that circumstantial

evidence may be used in a products liability action, “the well-established test for

determining whether expert testimony is required” under Kansas law is “whether the

subject matter is too complex to fall within the common knowledge of the jury and is

beyond the capability of a lay person to decide.” Williamson v. Amrani, 152 P.3d 60, 72

(Kan. 2007) (quotation omitted). In particular, the question before the district court was

whether “the trier of fact would be able to understand, absent expert testimony, the nature

of the standard of care required of defendant and the alleged deviation from the

standard.” Gaumer v. Rossville Truck & Tractor Co., 202 P.3d 81, 84 (Kan. Ct. App.

2009). We agree with the district court that the highly technical nature of tire design and

tire-failure analysis is well outside the ken of a jury, and thus expert testimony was

required to establish the standard of care.

       Third, Ho contends the testimony of Cassidy, when coupled with that of an

accident scene investigator, created a genuine dispute of material fact as to whether the

tire suffered adhesion failure. She notes Cassidy’s statement that the age of a tire is a
                                              -15-
“serious factor” and an investigator’s testimony that the tire did not appear to be worn

out. Even if Ho could rely on circumstantial evidence to establish her adhesion failure

claim, “that evidence must tend to negate other reasonable causes.” Samarah, 70 F.

Supp. 2d at 1202 (quotation omitted). Cassidy testified that there were multiple potential

causes of tire failure, some unrelated to defects including over-deflection and road

impacts. He also stated that he “would not testify that this tire failed because of age.”1

Because the proffered evidence does not tend to negate other reasonable causes of the

tire’s failure, we conclude that Ho failed to create a genuine fact issue as to adhesion

failure.

       Finally, Ho argues that the district court erred in dismissing her failure to warn

claim. She contends that Michelin failed to warn consumers that age can affect the

structural integrity of a tire, and that the lack of a warnings expert was immaterial given

the complete failure to warn. We agree with the district court that this claim was subject

to summary judgment because there was no evidence that age caused this tire failure. As

noted above, Cassidy testified that that age was a factor, but could not claim that the tire


       1
          Ho argues that we should not consider this evidence because it was “not
addressed in the summary judgment briefing.” However, Michelin stated in its motion
for summary judgment that it was relying on excerpts of Cassidy’s deposition, which
were presented to the district court as an attachment. See Feichko v. Denver & Rio
Grande W. R.R., 213 F.3d 586, 592 n.5 (10th Cir. 2000) (“In reviewing a grant of
summary judgment, our inquiry is limited to the summary judgment record before the
district court when the motion was decided.”). Ho does not point us to any authority
suggesting that we are barred from looking to the full context of a witness’ statements
when evaluating an incomplete quotation.

                                            -16-
failed because of age. And Woehrle testified that he did not consider age to be an

“applicable” concern for the tire at issue. Accordingly, Ho failed to present evidence

sufficient to establish that her “injury resulted from a condition of the product,” an

element of her failure to warn claim. See Jenkins v. Amchem Prods., Inc., 886 P.2d 869,

886 (Kan. 1994) (quotation omitted).

                                             IV

              AFFIRMED.



                                                   Entered for the Court


                                                   Carlos F. Lucero
                                                   Circuit Judge




                                            -17-
