           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT United States Court of Appeals
                                                   Fifth Circuit

                                                                            FILED
                                                                         November 7, 2007

                                       No. 06-30658                   Charles R. Fulbruge III
                                                                              Clerk

BEN W DART III, BUTLER CREEK LLC

                                                  Plaintiff-Appellant
v.

KITCHENS BROTHERS MANUFACTURING CO; TRAVELERS PROPERTY
CASUALTY

                                                  Defendants-Appellees



                   Appeal from the United States District Court
                       for the Middle District of Louisiana
                             USDC No. 3:03-CV-227


Before DENNIS, CLEMENT, and PRADO, Circuit Judges.
EDITH BROWN CLEMENT, Circuit Judge:*
       Ben W. Dart III, Butler Creek, L.L.C. (“Dart”) appeals the district court’s
dismissal of his complaint for breach of contract against Kitchens Brothers
Manufacturing Co. (“Kitchens Bros.”). Dart argues that the trial court erred in
excluding the testimony of two of Dart’s expert witnesses. For the following
reasons, we AFFIRM.
                         I. FACTS AND PROCEEDINGS


       *
        Pursuant to 5TH CIR. R. 47.5, this Court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
                                       No. 06-30658

      Dart owned 271.1 acres of land in West Feliciana Parish, Louisiana. He
planned to harvest the timber for sale and then sell the land. In June 2001, Dart
entered into a timber contract with Kitchens Bros., under which he sold all
standing timber above sixteen inches in diameter. In turn, Kitchens Bros.
subcontracted third parties to harvest the timber and to repair the property.
The contract contained certain restrictions and obligations relating to the
manner in which the timber should be harvested. The contract provided that “on
the entire property, the ground would be left in as good a condition upon
termination [of the harvest] as when operations started.” Additionally, the
contract stated that “timber shall be cut and removed in accordance with
Louisiana Best Management Practices [(“BMPs”)],” and that “no logging
operation should take place during periods of extreme weather.”1
      After Kitchens Bros. notified Dart in April 2002 that the timber harvest
had been completed and that the property had been restored, Dart inspected the
property and allegedly found significant erosion and other evidence that
Kitchens Bros. had failed to abide by the BMPs. Dart sued Kitchens Bros. for
breach of contract in April 2003, claiming damages for failing to harvest the
timber properly. Dart retained Cornelis de Hoop, Ph.D. (“Dr. de Hoop”) in 2003
to inspect the property for BMP violations and damages and A.D. Primeaux
(“Primeaux”) in January 2004 to measure and calculate the amount of soil
removed from the area.
      Kitchens Bros. requested a hearing to evaluate the qualifications and
methodologies of both Dr. de Hoop and Primeaux as experts under Daubert v.
Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 593 (1993).2               After a three-


      1
         “Louisiana Best Management Practices” is a term of art in the timber industry
referring to the guidelines established by the Louisiana Department of Agriculture and
Forestry for the purpose of reducing erosion and maintaining water quality.
      2
          Both parties consented to have their dispute heard by a magistrate judge.

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day hearing, the magistrate judge excluded both testimonies, finding that both
were unreliable and did not meet the requirements for expert testimony under
Rule 702 of the Federal Rules of Evidence.3              The magistrate judge then
dismissed the case for lack of evidence. Dart appeals the magistrate judge’s
exclusion of the expert testimonies of Dr. de Hoop and Primeaux and argues that
the magistrate judge improperly dismissed the case.
                           II. STANDARD OF REVIEW
      We review the admission or exclusion of expert testimony under Daubert
for abuse of discretion. Pipitone v. Biomatrix, Inc., 288 F.3d 239, 243 (5th Cir.
2002).
                                 III. DISCUSSION
      Rule 702 establishes the standards for determining whether expert
testimony is admissible to assist the fact finder to understand the evidence. For
any expert opinion on scientific, technical, or specialized knowledge to be
admissible, Rule 702 identifies three standards: “(1) the testimony [must be]
based upon sufficient facts or data, (2) the testimony [must be] the product of
reliable principles and methods, and (3) the witness [must have] applied the
principles and methods reliably to the facts of the case.” FED. R. EVID. 702.
Explicating these standards for admission, the Supreme Court in Daubert
instructed trial courts to act as “gatekeepers” for admissible expert testimony
and provided an illustrative list of factors that courts may use when evaluating
the reliability of such testimony. 509 U.S. at 592–93. These factors include
whether the expert’s theory or technique can be or has been tested, whether it
has been subjected to peer review, whether it has a known or potential rate of




      3
         After the second day of the Daubert hearing, Dart reduced his claim, confining the
claim to one small area of the property and significantly reducing the amount of damages he
sought from over $2 million to less than $300,000.

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error or standards controlling its operation, and whether it is generally accepted
in the relevant scientific community. Id. at 593–94.
      “In short, expert testimony is admissible only if it is both relevant and
reliable.” Pipitone, 288 F.3d at 244. Therefore, the use of the Daubert factors
in determining whether testimony is admissible should be flexible and “may or
may not be pertinent in assessing reliability, depending on the nature of the
issue, the expert’s particular expertise, and the subject of his testimony.”
Kumho Tire Co. v. Carmichael, 526 U.S. 137, 150 (1999) (internal quotations
omitted). Under this flexible approach, for certain types of claims, “the expert’s
testimony [can be] based mainly on his personal observations, professional
experience, education and training.” Pipitone, 288 F.3d at 247.
      Nonetheless, the question of whether an expert’s testimony is reliable is
ultimately a fact-specific inquiry. Burleson v. Tex. Dep’t of Criminal Justice, 393
F.3d 577, 584 (5th Cir. 2004). The proponent of the expert testimony must prove
reliability by a preponderance of the evidence. Moore v. Ashland Chem. Inc., 151
F.3d 269, 276 (5th Cir. 1998) (en banc).         It is then the district court’s
responsibility to “make certain that an expert, whether basing testimony upon
professional studies or personal experience, employs in the courtroom the same
level of intellectual rigor that characterizes the practice of an expert in the
relevant field.” Kumho Tire, 526 U.S. at 152.
      Here, Dart argues that the accepted method of determining BMP
violations is through observation based on the expert’s experience, education,
and training. Kitchens Bros. did not dispute this argument. Indeed, “this circuit
has upheld the admission of expert testimony where it was based on the expert’s
specialized knowledge, training, experience, and first-hand observation while
supported by solid evidence in the scientific community.” Pipitone, 288 F.3d at
247. For example, we have upheld the admission of testimony from an expert
on marshland who assessed liability for marsh deterioration based solely upon

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personal observations and expertise.         St. Martin v. Mobil Exploration &
Producing U.S. Inc., 224 F.3d 402, 405–06 (5th Cir. 2000). Because “[e]ach
marsh will have different forces acting upon it, depending upon its specific
location and its surroundings . . . a court could not rationally expect that a
marshland expert would have published a peer-reviewed paper on each possible
permutation of factors or each damaged area of marsh.” Id. at 406.
      However, “[d]istrict courts enjoy wide latitude in determining the
admissibility of expert testimony, and the discretion of the trial judge and his or
her decision will not be disturbed on appeal unless manifestly erroneous.”
Watkins v. Telsmith, Inc., 121 F.3d 984, 988 (5th Cir. 1997) (internal quotations
omitted). Although a trial judge’s discretion should be supported by “adequately
supported findings,” St. Martin, 224 F.3d at 406, the trial judge must not apply
the reliability factors too stringently and “transform a Daubert hearing into a
trial on the merits.” Pipitone, 288 F.3d at 250. We evaluate, therefore, whether
the magistrate judge here abused her discretion by either failing to support her
findings adequately or applying the Daubert reliability factors too stringently.
      The record indicates that the magistrate judge took significant care to
weigh the Daubert factors against the methodologies used by Dr. de Hoop and
Primeaux. The magistrate judge found that Dr. de Hoop’s methodology was
deficient in a number of ways. She found that he (1) failed to explain exactly
how Kitchens Bros. violated the BMPs, (2) could not establish that his method
had ever been used before and did not compare his method with an established
one, (3) had never assessed damages caused by failing to follow BMPs, (4) did not
testify in a way that permitted him to extrapolate the claim for damages to the
land, (5) did not begin his testing of the land until two years after operations had
ceased, (6) did not explain how he accounted for the lapse of time or intervening
factors like all-terrain vehicle use or weather, and (7) lacked a baseline for
knowing whether the damage he observed was recently caused. She also found

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that Primeaux’s proposed testimony suffered from similar flaws, notably the lack
of a pre-harvesting baseline and inadequate treatment of other potential causes
for erosion. Additionally, the record shows that Primeaux admitted to basic
mathematical errors in his report that were subsequently relied upon by Dr. de
Hoop to assess damages. Because of the flaws in the underlying calculations,
any calculation of damages would also be unreliable.
      Dart contends that the magistrate judge simply did not understand Dr. de
Hoop’s testimony. To explain Dr. de Hoop’s testimony, Dart offers a scant
recitation of highlights from the hearing without an effort to address many of the
concerns raised by the magistrate judge. We are not persuaded by Dart’s
argument regarding the magistrate judge’s level of comprehension of both
experts’ testimonies and hold that the magistrate judge adequately supported
her findings in excluding the testimonies of both experts.
      The record also does not suggest that the magistrate judge applied the
Daubert factors too stringently by limiting her assessment of the reliability of
each expert only to those factors. Indeed, the magistrate judge considered Dr.
de Hoop’s general expertise in BMPs and his familiarity with the terrain, but
concluded that his expertise did not extend to reliability in assessing damages
in relation to BMP violations. Likewise, the magistrate judge considered
Primeaux’s experience and expertise in calculating soil erosion, but ultimately
rejected his testimony for basic mathematical errors and flaws in methodology.
Therefore, we hold that the magistrate judge’s application of the Daubert factors
in evaluating the experts’ testimonies was not manifestly erroneous.
                              IV. CONCLUSION
      We hold that the magistrate judge did not abuse her discretion in
excluding the expert testimonies of Dr. de Hoop and Primeaux and, therefore,
properly dismissed the case for lack of evidence. The judgment of the district
court is AFFIRMED.

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